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YALE  LECTURES  ON  THE 
RESPONSIBILITIES  OF  CITIZENSHIP 


THE   RELATIONS   BETWEEN 

FREEDOM   AND   RESPONSIBILITY 

IN   THE   EVOLUTION   OF   DEMOCRATIC 
GOVERNMENT 


IN   THE    SAME    SERIES. 

THE  RELATION  BETWEEN  FREEDOM 
AND  RESPONSIBILITY  IN  THE  EVO- 
LUTION OF  DEMOCRATIC  GOVERN- 
MENT. By  Arthur  T.  Hadlev,  President 
of  Yale  University.      lamo.      ;$i.oo  net. 

THE  CITIZEN  IN  HIS  RELATION  TO 
THE  INDUSTRIAL  SITUATION.  By 
Henry  C.  Potter,  D.D.,  LL.D.,  Bishop  of 
New  York.      i2mo.      $i.oo  net. 

AMERICAN  CITIZENSHIP.  By  David  J. 
Brewer,  Associate  Justice,  Supreme  Court  of 
the  United  States,      izmo.      75  cents  net. 


THE  RELATIONS   BETWEEN 

FREEDOM 

AND 

RESPONSIBILITY 

IN   THE   EVOLUTION 
OF   DEMOCRATIC   GOVERNMENT 

BY 

ARTHUR   TWINING   HADLEY 

PRESIDENT   OF   YALE    UNIVERSITV 

AUTHOR   OF    "economics,"    "RAILROAD   TRANSPORTATION," 
"the   education    of  the   AMERICAN    CITIZEN" 


NEW   YORK 

CHARLES    SCRIBNER'S    SONS 

1903 


Copyright,  1903 
By  Yale  University 

Published,    December,  1903 


TROW  DIRECTORY 

PRINTINQ  AND  BOOKBINDING  COMPANY 

NIW   YORK 


LIBRARY 

571 


H  II 

no 


TO 

THE   MEMORY  OF 

WILLIAM    EARL   DODGE 

FOUNDER   OF   THE   YALE   LECTURES   ON   THE 

RESPONSIBILITIES   OF   CITIZENSHIP 

WHO    HIMSELF   ACCEPTED   THOSE   RESPONSIBILITIES 

IN   THE   FULLEST   MEASURE 

AND   WHO 

BY   HIS   CHARACTER   AND   HIS   EXAMPLE 

INSPIRED   OTHERS   TO 

DO   LIKEWISE 


\ 

V 


PREFACE 

For  the  successful  conduct  of  a  nation's  affairs, 
we  must  have  a  certain  degree  of  conformity  be- 
tween its  political  institutions  and  the  moral  char- 
acter of  its  members.  There  is  one  set  of  virtues 
which  fits  men  to  be  subjects  of  a  monarchy;  there 
is  another  very  different  set  which  is  requisite  for 
the  citizens  of  a  free  commonwealth. 

We  find  a  tendency  among  many  people  at  the 
present  day  to  claim  the  political  rights  of  free  citi- 
zens without  accepting  the  moral  obligations  which 
go  with  them.  But  the  attempt  to  assume  the  privi- 
leges of  freedom  and  disclaim  its  responsibilities 
is  fatal  to  the  nation  which  tolerates  it ;  and  theories 
of  law  or  schemes  of  social  reform  which  ignore 
this  ethical  basis  of  democracy  are  likely  to  prove 
suicidal. 

It  is  the  object  of  this  book  to  show  what  this 
ethical  basis  of  democracy  is,  how  it  has  arisen,  and 
what  happens  if  we  try  to  ignore  it. 


CONTENTS 


PAGE 

I.   Democracy  in  Theory  and  in  Practice  .      1 
II.    The  Basis  of  Civil  Liberty 26 

III.  Freedom  as  a  Religious  Conception  .    .    48 

IV.  Freedom  as  a  Legal  Institution     ...     73 
V.    Freedom  as  a  Foundation  of  Ethics  .     .  102 

VI.    The  Limits  of  Individual  Freedom     .     .  126 
VII.   The  Outlook  for  the  Future     ....  150 


FREEDOM  AND  RESPONSIBILITY 


DEMOCRACY  IN  THEORY  AND  IN  PRACTICE 

The  ordinary  student  of  public  affairs  is  content 
to  classify  governments  by  their  external  form.  He 
calls  them  monarchies,  aristocracies,  or  democra- 
cies, according  as  the  supreme  authority  rests  in  the 
hands  of  an  individual,  a  privileged  class,  or  a  large 
body  of  citizens ;  and  having  thus  labelled  a  political 
society  with  one  of  these  three  names,  he  thinks  that 
he  knows  something  about  its  real  character. 

But  the  man  who  goes  more  deeply  into  the  sub- 
ject sees  that  the  form  of  government  is  an  unim- 
portant thing  as  compared  with  the  spirit  in  which 
government  is  administered.  A  king  or  a  privileged 
class  ruling  in  accordance  with  traditions  and  try- 
ing to  act  for  the  interests  of  the  people  will  give 
a  much  larger  measure  of  real  freedom  than  is 
possible  under  a  democracy  whose  members  have  no 
respect  for  the  past  and  no  higher  aim  than  their 
own  selfish  advancement.     In  1793  France  was  a 

1 


2  FREEDOM  AND  RESPONSIBILITY 

democracy,  England  an  aristocracy ;  but  the  actual 
amount  of  liberty  enjoyed  in  England  was  decidedly 
greater  than  in  France.  The  more  a  man  knows  of 
political  history,  the  more  he  will  appreciate  the 
reasons  which  led  Aristotle  to  divide  all  govern- 
ments into  two  fundamentally  distinct  classes:  the 
legitimate  and  the  illegitimate.  Legitimate  gov- 
ernments are  administered  in  the  interest  of  the 
whole  body  politic,  under  a  system  of  traditions 
whose  gradual  growth  and  preservation  is  the  best 
guarantee  that  this  public  interest  is  subserved. 
Illegitimate  governments  are  administered  in  the 
interest  of  the  governing  body — be  it  an  individual, 
a  small  group,  or  a  large  number  of  free  citizens — 
with  relatively  little  regard  for  the  wider  interests 
of  the  body  politic,  and  without  any  adequate  re- 
straints of  tradition.  This  internal  character  or 
spirit  of  a  government  is  far  more  important  than 
any  of  its  external  characteristics.  With  unselfish 
purpose  and  adherence  to  tradition  any  govern- 
ment, whatever  its  form,  may  be  said  to  exist  by 
the  consent  of  the  governed.  Without  such  un- 
selfish purpose  and  adherence  to  tradition,  mon- 
archy degenerates  into  tyranny,  aristocracy  into 
oligarchy,  democracy  into  populism. 

As  far  as  monarchy  and  aristocracy  are  con- 
cerned, these  dangers  are  sufficiently  obvious.     It 


DEMOCRACY  IN  THEORY  AND  PRACTICE     3 

is  easy  to  see  that  a  monarch,  acting  for  his  own 
selfish  ends,  may  declare  himself  independent  of 
the  law  and  become  a  tyrant.  It  is  easy  to  see  that 
an  aristocracy,  preferring  class  interest  to  public 
interest,  may  degenerate  into  the  rule  of  an  element 
which  is  far  from  being  the  best  in  the  state.  It  is 
plain  enough  that  a  king  or  a  nobleman  does  not 
deserve  to  continue  in  office  unless  he  regards  polit- 
ical power  as  a  trust  to  be  exercised  in  behalf  of 
society  as  a  whole.  But  it  has  not  always  been 
recognized  that  the  same  dangers  exist  in  a  democ- 
racy, and  that  a  democratic  people  needs  to  be 
animated  by  the  same  sense  of  trusteeship  in  the 
exercise  of  its  political  functions. 

Some  men  believe  that  the  mere  existence  of  de- 
mocracy renders  it  impossible  that  public  affairs 
should  be  administered  in  the  interests  of  a  class  or 
group.  They  think  that  government  by  popular 
election  will  necessarily  mean  government  for  the 
people.  They  hold  that  if  a  state,  nominally  dem- 
ocratic, is  managed  for  the  benefit  of  a  favored  few, 
it  simply  proves  that  the  elections  are  being  im- 
properly conducted — in  other  words,  that  we  have 
before  us  not  a  democracy,  but  an  oligarchy  mas- 
querading under  a  false  name.  Men  who  look  at 
things  in  this  way  have  urged  an  equalization  of 
political  power  among  all  classes  as  a  sovereign 


4  FREEDOM  AND  RESPONSIBILITY 

remedy  for  public  ills.  Others,  who  do  not  go  to 
this  extreme  and  are  clear-headed  enough  to  admit 
the  possibility  of  abuse  of  democratic  authority, 
nevertheless  believe  that  with  a  proper  legal  ma- 
chinery of  checks  and  balances  the  dangers  of  this 
abuse  can  be  reduced  to  a  minimum  and  perhaps 
altogether  avoided.  They  think  that  a  constitution 
can  be  framed  in  such  a  way  that  the  people  can 
let  their  political  life  be  governed  by  considerations 
of  self-interest  without  serious  detriment — nay, 
perhaps  with  positive  advantage — to  the  necessities 
of  the  republic  as  a  whole. 

Each  of  these  views  is  erroneous,  and  may  readily 
become  dangerous.  The  error  in  the  second  is  less 
obvious  than  in  the  first ;  but  the  practical  dangers 
which  arise  from  its  prevalence  are  all  the  greater 
on  that  account.  It  is  probably  quite  as  necessary 
for  the  citizens  of  a  democratic  state  to  regard  polit- 
ical power  as  a  public  trust,  to  be  exercised  for  the 
benefit  of  others,  as  it  is  for  a  monarch  or  an  aris- 
tocrat. The  acceptance  of  this  responsibility  and 
trusteeship  goes  with  the  successful  exercise  of 
every  kind  of  freedom — moral,  social,  or  civil.  Any 
attempt  to  claim  freedom  and  disclaim  responsi- 
bility, under  whatever  name  or  form  of  govern- 
ment, proves  illusory  or  self-destructive. 

The  danger  of  relying  on  unrestricted  democracy 


DEMOCRACY  IN  THEORY  AND  PRACTICE     5 

was  most  clearly  illustrated  at  the  time  of  the 
French  Revolution  of  1789.  The  leaders  of  that 
movement,  when  they  swept  away  the  evils  which 
had  been  incident  to  an  outworn  system  of  class 
privileges,  thought  that  it  would  be  sufficient  for 
them  to  give  equality  of  voting  power  in  order  to 
have  the  government  administered  in  the  general 
interest.  They  were  so  enamored  of  Rousseau's 
phrases  about  the  sovereignty  of  the  people  that 
they  neglected  his  warnings  against  short  cuts 
toward  the  exercise  of  that  sovereignty.  The  conse- 
quences which  followed  are  only  too  well  known. 
Whoever  at  any  given  moment  commanded  the  ma- 
jority of  votes  in  the  National  Assembly  deemed 
himself,  for  the  time  being,  the  exponent  of  the 
public  will,  and  regarded  his  personal  judgment 
as  the  index  of  public  opinion.  Each  believed  that 
he  was  the  accredited  agent  of  the  whole  people. 
At  the  end  of  the  seventeenth  century  Louis  XIV 
had  said,  "I  am  the  State."  With  equal  fervor 
of  conviction  Marat,  or  Danton,  or  Robespierre  was 
ready  to  pronounce  those  same  words  at  the  end 
of  the  eighteenth.  Louis  XIV,  in  spite  of  his  abso- 
lute political  authority,  was  subject  to  some  re- 
straints of  custom  and  tradition.  The  revolutionary 
leaders  recognized  no  such  restraints,  and  were  for 
that  reason  even  more  liable  to  abuse  their  power. 


6  FREEDOM  AND  RESPONSIBILITY 

That  their  government  in  theory  represented  the 
will  of  the  whole  people  only  made  matters  worse 
in  practice,  because  it  removed  moral  restraints 
which  would  otherwise  have  made  themselves  felt. 
The  fact  that  Danton  regarded  himself  as  the  com- 
munity's  representative  was  the  very  thing  which 
rendered  him  most  unsafe  to  the  community.  It  has 
been  said  that  virtue  is  more  dangerous  than  vice, 
because  its  excesses  are  not  subject  to  the  restraints 
of  conscience.  It  was  these  excesses  of  supposed 
virtue  which  made  the  Reign  of  Terror  possible. 
The  men  who,  like  St.  Just,  were  most  irreproach- 
able in  their  private  character,  were  the  very  ones 
to  be  most  unscrupulous  in  the  use  of  judicial  mur- 
der for  what  they  supposed  to  be  the  public  interest. 
It  is  easy  to  point  out  the  fallacy  in  the  views  of 
the  French  Revolutionary  leaders.  They  did  not 
properly  distinguish  between  the  government  and 
the  people.  They  supposed  that  when  the  people 
elected  the  government,  the  members  of  that  govern- 
ment became,  ipso  facto,  the  mouthpieces  of  the 
popular  will.  This  of  course  did  not  follow.  A 
person  who  was  elected  to  office  might  be  a  bad 
man,  whose  wishes  would  be  as  tyrannical  as  those 
of  the  most  degraded  monarch.  Or  he  might  be  a 
misguided  man,  who  would  mistake  his  own  false 
judgments  for  the  opinion  of  the  people  as  a  whole. 


DEMOCRACY  IN  THEORY   AND  PRACTICE     7 

Or — and  this  is  perhaps  the  hardest  thing  of  all  to 
avoid — even  if  he  were  honest  and  clear-headed, 
and  tried  to  carry  out  the  wishes  of  the  majority 
who  had  elected  him,  this  majority  might  have  in- 
terests of  its  own  which  it  would  use  for  the  detri- 
ment and  the  oppression  of  the  minority.  In  none 
of  these  cases  would  the  government  really  repre- 
sent the  interests  of  the  body  politic.  The  more 
unchecked  the  power  of  a  political  leader  under  any 
of  these  circumstances,  the  greater  was  the  proba- 
bility of  oppression  and  of  class  legislation. 

The  failure  of  the  French  to  appreciate  this  dis- 
tinction between  the  people  and  their  elective  offi- 
cials was  largely  due  to  the  fact  that  democratic 
power  was  given  to  them  too  suddenly.  They  had  had 
no  chance  to  experiment  with  its  exercise  in  detail, 
and  could  hardly  fail  to  be  misled  by  false  theories 
when  they  were  suddenly  called  upon  to  apply  it 
on  a  large  scale.  In  England  and  in  the  English 
colonies  of  America,  where  the  growth  of  freedom 
was  more  gradual,  the  chance  for  experiments  in 
self-government  had  been  larger,  and  the  danger 
from  false  theories  was  correspondingly  less.  So 
long  as  our  ancestors  were  stating  principles,  they 
stated  them  very  much  as  the  French  did.  But 
when  they  set  out  to  apply  them  to  the  actual  work 
of  government,  they  took  pains  to  avoid  the  prac- 


■*-■ 


8  FREEDOM  AND  RESPONSIBILITY 

tical  difficulties  of  which  they  had  already  had 
experience.  The  Declaration  of  Independence  con- 
tains theories  closely  resembling  those  of  Rousseau ; 
but  the  Constitution  of  the  United  States  is  as 
different  from  any  of  the  French  constitutions  at 
the  close  of  the  eighteenth  century  as  a  practical 
machine  is  different  from  a  whirligig.  The  English 
and  American  liberals  relied  on  restricted  or  con- 
stitutional democracy  as  a  means  of  avoiding  the 
evils  which  had  sprung  from  monarchy  or  aristoc- 
racy on  the  one  hand,  and  from  unrestrained  popu- 
lar power  on  the  other.  The  framers  of  our  Con- 
stitution set  out  with  a  definite  problem  before 
them — ^the  problem  of  constructing  a  working  gov- 
ernment which  should  give  effect  to  the  will  of  the 
people  and  at  the  same  time  provide  efficient  safe- 
guards for  individual  liberty.  When  their  theories 
seemed  likely  to  secure  this  result,  they  stated  them 
boldly.  When  they  seemed  likely  to  interfere  with 
it,  they  quietly  ignored  them. 

The  main  points  which  our  ancestors  had  thus 
learned  from  the  history  of  the  English  Parliament 
and  from  their  own  experience  in  the  colonial  as- 
semblies may  be  summed  up  in  a  few  words. 

A  representative  assembly  or  convention,  com- 
posed of  delegates  from  different  sections  of  the 
community,  had  its  chief  usefulness  as  a  forum  for 


DEMOCRACY  IN  THEORY  AND  PRACTICE  9 

discussion  and  a  means  of  forming  public  opinion. 
For  this  purpose  it  was  admirably  adapted.  For 
conducting  the  real  business  of  government  it 
was  not  well  fitted.  If  it  attempted  to  perform 
this  work  itself  it  was  vacillating  in  policy,  and 
arbitrary  and  irresolute  by  turns.  This  had  been 
exemplified  in  the  sessions  of  the  Continental  Con- 
gress. It  had  been  almost  equally  conspicuous  in 
England  during  the  struggle  between  the  King  and 
Parliament  in  the  middle  of  the  seventeenth  cen- 
tury. There  are  times  when  firmness  of  purpose 
and  promptitude  of  action,  even  though  it  be  some- 
what unwise,  are  preferable  to  the  wisest  delibera- 
tion protracted  to  an  undue  length.  Armies,  says 
Macaulay,  have  won  victories  under  bad  generals, 
but  no  army  ever  won  a  victory  under  a  debating 
society.  If,  on  the  other  hand,  the  convention  or 
parliament  recognized  these  limitations,  and  did  not 
attempt  to  perform  the  actual  work  of  administra- 
tion, but  found  within  its  ranks  some  leader  to 
whom  it  was  ready  to  delegate  its  powers,  that 
leader  soon  became  strong  enough  to  reduce  the 
assembly  to  a  mere  cipher  and  to  exercise  an  author- 
ity none  the  less  despotic  because  decently  veiled 
under  some  of  the  forms  of  popular  government. 
This  had  been  England's  experience  in  the  case  of 
Cromwell;   and  it  is  one  which,  on  a  larger  or 


10  FREEDOM  AND  RESPONSIBILITY 

smaller  scale,  almost  every  democratic  nation  has 
been  forced  to  repeat. 

To  meet  these  dangers,  the  American  Constitution 
provided  that  the  actual  work  of  government  should 
not  be  performed  either  by  the  legislative  assembly, 
or  by  an  appointee  of  that  assembly,  but  by  an 
officer  chosen  through  another  body  called  the  elec- 
toral college.  It  was  to  be  the  duty  of  this  college 
to  deliberate  on  the  choice  of  president  and  vice- 
president;  and,  having  performed  that  duty,  to 
terminate  its  official  life,  leaving  the  president  free 
to  act  in  the  sphere  of  government  assigned  him, 
while  the  legislature,  within  its  own  sphere,  still 
possessed  its  full  force  and  had  not  abrogated  or 
delegated  any  of  its  powers.  These  powers  of  the 
legislature,  or  Congress,  under  the  American  Con- 
stitution, were  similar  to  those  which  were  actually 
exercised  at  the  time  by  the  English  Parliament. 
It  could  pass  laws  after  proper  debate,  and  it  could 
exercise  indirect  control  over  the  acts  of  the  execu- 
tive by  its  power  of  withholding  supplies,  and  by 
certain  other  means  which  the  Constitution  pro- 
vided in  order  to  prevent  the  president  from  arbi- 
trarily disregarding  the  wishes  of  the  people  as 
expressed  in  Congress.  It  was  further  provided 
that  the  executive  authority  of  the  president  and 
the  legislative  authority  of  Congress  were  to  be 


DEMOCRACY  IN  THEORY  AND  PRACTICE   11 

exercised  only  within  definite  limits  and  under  re- 
strictions set  by  custom  or  rendered  advisable  by 
experience.  Some  of  these  were  incorporated  in 
the  Constitution ;  others  were  involved  in  the  tacit 
acceptance  of  English  legal  principles.  Courts 
were  established,  whose  members  were  appointed  by 
the  executive  but  whose  tenure  of  office  rendered 
them  independent  of  arbitrary  whims  of  that  ex- 
ecutive, which  could  define  the  application  of  these 
principles  and  prevent  the  President  or  the  Con- 
gress from  transgressing  them. 

This  is  a  picture,  necessarily  brief  and  imperfect, 
but  fair  in  its  essential  outlines,  of  the  most  im- 
portant attempt  which  the  world  Has  seen  to  provide 
machinery  of  democratic  self-government.  It  indi- 
cates the  dangers  which  the  framers  of  our  Consti- 
tution anticipated  and  the  methods  which  they 
actually  employed  to  meet  them.  In  the  light  of  a 
full  century  of  experience,  what  shall  we  say  of 
their  success  ? 

In  the  main,  they  succeeded  well.  The  specific 
things  which  they  set  out  to  do  they  unquestionably 
brought  about.  They  established  a  government 
sufficiently  popular  to  prevent  revolution,  and  yet 
sufficiently  conservative  to  secure  prosperity.  There 
have  been  no  dangerous  acts  of  usurpation  on  the 
part  of  the  executive.    This  branch  of  the  govern- 


12         FREEDOM  AND  RESPONSIBILITY 

ment  has  been  always  fairly  strong,  and  in  emer- 
gencies exceedingly  strong,  without  in  general  be- 
coming arbitrary  or  oppressive.  There  has  been 
an  independent  activity  of  President,  Congress  and 
courts  which  has,  to  some  degree,  followed  the  lines 
which  Hamilton  and  Madison  had  in  mind.  The 
safeguards  of  traditional  usage  have  been  main- 
tained ;  and  the  courts  have  exercised  a  control  over 
arbitrary  acts  of  the  legislature,  at  once  more  ex- 
tended and  more  salutary  than  was  deemed  possible 
at  the  outset. 

To  a  certain  extent,  then,  the  f  ramers  of  the  Con- 
stitution may  be  said  to  have  protected  us  against 
the  dangers  of  assumption  of  arbitrary  power  in 
the  interests  of  an  individual  or  a  class.  But  this  is 
true  only  to  a  certain  extent.  In  providing  against 
one  set  of  dangers  which  they  could  anticipate  from 
past  experience  they  exposed  us  to  another  set  which 
they  could  not  thus  anticipate. 

It  was,  I  think,  the  tacit  assumption  of  the  mem- 
bers of  the  Constitutional  Convention  that  the 
various  representative  bodies  which  it  provided — 
the  electoral  college  and  the  two  houses  of  Congress 
— would  be  organs  for  the  formation  of  public  opin- 
ion. Coming  from  different  parts  of  the  country, 
their  members  would  enlighten  one  another  as  to  the 
views  and  needs  of  American  citizens  in  different 


DEMOCRACY  IN  THEORY  AND  PRACTICE   13 

places,  and  would  thus  be  able  to  arrive  at  a  com- 
mon  understanding  concerning  the  views  and  needs 
of  the  nation  as  a  whole,  which  they  in  turn  would 
report  to  their  constituents  and  defend  against  local 
criticism.  This  had  been  the  essential  character  of 
the  English  Parliament  down  to  the  close  of  the 
eighteenth  century.  It  was,  as  its  name  implied,  a 
parliament — a  place  for  debating.  By  its  debates 
it  held  up  to  public  odium  the  tyrannical  acts  of 
the  king  which  otherwise  might  have  escaped  notice, 
and  created  a  common  public  sentiment  which  made 
all  parts  of  the  kingdom  ready  to  resist  infringe- 
ment on  the  liberties  of  any.  In  the  earlier  days 
of  Parliament,  all  its  other  achievements  and  powers 
were  small  in  comparison  with  this.  But  during 
the  course  of  the  nineteenth  century  these  debating 
functions  of  the  English  Parliament,  and  of  other 
representative  bodies  modelled  upon  it,  became 
much  less  important.  The  post  office,  the  news- 
paper, the  telegraph,  caused  public  opinion  to  be 
formed  in  advance,  before  any  representative  as- 
sembly could  meet.  As  soon  as  this  change  took 
place,  the  importance  of  parliamentary  discussion 
almost  necessarily  died  away.  The  electoral  college 
had  been  originally  intended  as  a  body  for  debate, 
whose  members  should  make  up  their  minds,  after 
consultation,  as  to  the  candidate   whose  election 


14  FREEDOM  AND  RESPONSIBILITY 

would  best  subserve  the  interests  of  the  whole  body 
politic ;  but  it  soon  became  a  mere  machine  for  reg- 
istering instructions  previously  given  to  its  mem- 
bers by  the  convention  of  the  party  which  elected 
them.  A  similar  result  has  made  itself  felt  in  the 
houses  of  Congress;  more  slowly  and  less  com- 
pletely, indeed,  because  it  is  impossible  for  a  con- 
vention to  instruct  its  representatives  as  explicitly 
on  the  various  points  of  legislation  which  are  likely 
to  arise  as  it  can  instruct  them  on  the  ballot  to  be 
cast  for  a  president  or  a  vice-president,  but  none 
the  less  inevitably.  Congressional  debate,  which  by 
one  generation  of  our  statesmen  was  used  as  a  means 
of  forming  public  opinion,  became  in  the  second 
generation  only  a  means  of  expressing  or  justifying 
the  attitude  of  a  section,  and  in  the  third  generation 
is  barely  tolerated  as  a  survival  of  ancient  practices, 
to  be  cut  short  whenever  the  exigencies  of  business 
demand  it.  For,  coincident  with  this  decline  in  the 
demand  for  debate,  there  has  been  an  increase  in 
the  amount  of  business  to  be  done.  A  thousand  de- 
tails occupy  the  attention  of  each  branch  of  our 
legislature  for  one  that  might  have  come  before  it 
a  century  ago.  With  so  little  time  for  public  dis- 
cussion, and  so  many  practical  measures  to  be 
pushed  through,  it  is  not  surprising  that  the  average 
congressman  of  today  has  ceased  to  regard  it  as  his 


DEMOCRACY  IN  THEORY  AND  PRACTICE  15 

primary  duty  to  shape  public  opinion  by  his  utter- 
ances, his  votes,  and  his  personal  influence.  On 
questions  of  party  policy  he  deems  himself  com- 
missioned to  register  the  will  of  those  who  elected 
him,  and  on  all  non-partisan  matters  to  use  his 
utmost  efforts  to  despatch  such  business  as  the  in- 
terests of  his  district  most  urgently  demand. 

In  an  assembly  of  this  kind  the  work  of  govern- 
ment tends  to  degenerate  into  a  series  of  attempts 
to  promote  partisan  or  local  interests,  rather  than 
to  unite  all  persons  in  the  pursuit  of  a  common 
interest.  Even  when  legislators  honestly  strive 
to  resist  this  tendency,  they  are  often  powerless  to 
overcome  it.  The  efforts  of  the  leaders  are,  and  of 
necessity  must  be,  directed  toward  the  securing 
of  a  majority,  rather  than  toward  the  convincing  of 
a  minority.  The  acts  of  a  body  under  such  leader- 
ship are  a  series  of  negotiations  rather  than  discus- 
sions, looking  toward  compromise  rather  than  toward 
mutual  enlightenment.  It  is  urged  by  those  who 
defend  the  system  that  these  negotiations  and  these 
struggles  are  conducted  on  fair  terms;  that  the 
local  and  partisan  efforts  of  some  men  in  certain 
directions  are  balanced  by  the  equally  free  efforts 
of  other  men  in  other  directions;  that  a  majority 
which  abuses  its  powers  will  soon  find  itself  in  a 
minority;  and  that,  in  short,  the  free  play  of  this 


16  FREEDOM  AND  RESPONSIBILITY 

conflict  of  parties  and  districts  gives  quite  as  equi- 
table results  as  any  other  system  which  has  been 
devised.  We  have  hardly  time  to  stop  and  consider 
how  far  these  views  are  justified.  Whatever  may 
be  said  in  extenuation  of  the  evils,  it  frequently 
happens  in  the  work  of  modern  legislative  assem- 
blies that  the  fair  claims  of  minorities  are  ruthlessly 
sacrificed ;  that  those  who  would  defend  the  public 
treasury  from  the  effects  of  extravagant  appropria- 
tion bills  are  overborne  by  a  coalition  of  those  who 
see  in  a  group  of  such  bills  a  special  advantage  to 
the  interests  which  they  represent;  and  that  the 
interests  of  those  so  organized  that  they  can  at  the 
moment  command  many  votes  are  allowed  to  out- 
weigh far  weightier  interests  which  are  not  so  cir- 
cumstanced. Whatever  may  be  the  final  outcome  of 
the  struggle,  the  immediate  effort  of  the  leaders  of 
our  representative  assemblies  works  toward  what 
Aristotle  calls  illegitimate  government — govern- 
ment by  a  group  in  its  own  interest,  rather  than  in 
the  interest  of  the  whole  body  politic. 

This  effect  is  not  peculiar  to  the  United  States. 
It  has  been  felt  to  a  greater  or  less  degree  in  Eng- 
land, in  France,  and  in  Germany.  But  there  is  one 
special  set  of  conditions  in  the  American  Constitu- 
tion which  has  made  the  change  go  farther  in  the 
United  States  than  anywhere  else,  and  has  rendered 


DEMOCRACY  IN  THEORY  AND  PRACTICE   17 

the  resulting  problems  very  much  more  difficult 
to  meet. 

The  f  ramers  of  our  Constitution,  in  order  to  avoid 
the  danger  of  usurpation  by  the  president,  reduced 
to  a  minimum  the  connection  between  the  executive 
and  legislative  departments  of  the  government ;  and 
at  the  same  time  they  so  arranged  the  powers  of  each 
of  these  departments  that  neither  could  be  very 
effective  without  the  other.  The  legislative  work  of 
Congress  was  subject  to  the  president's  veto.  The 
executive  work  of  the  president  was  dependent  for 
its  effective  prosecution  upon  the  good-will  of  a 
congressional,  and  especially  of  a  senatorial,  ma- 
jority. Each  department  had  it  in  its  power  to 
thwart  the  efforts  of  the  other.  This  was  a  good 
thing  in  extreme  cases,  when  either  department 
wished  to  violate  the  Constitution ;  but  in  ordinary 
cases,  when  we  wanted  to  have  the  regular  work  of 
government  smoothly  and  effectively  performed,  it 
was  always  inconvenient  and  sometimes  bad.  No 
private  corporation  can  be  efficiently  managed  when 
it  is  run  by  two  independent  sets  of  authorities  at 
the  same  time.  What  is  true  of  a  private  corpora- 
tion is  equally  true  of  a  public  corporation.  Di- 
vision of  authority  causes  work  to  be  done  slowly, 
and  prevents  people  from  fixing  the  responsibility 
for  its  failure  or  inefficiency.     In  England,  where 


18  FREEDOM  AND  RESPONSIBILITY 

the  prime  minister,  representing  a  Parliamentary 
majority,  constitutes  the  real  executive,  we  know 
fairly  well  where  to  award  the  praise  or  blame  for 
what  is  going  on.  If  Parliament  passes  the  bills 
which  he  desires,  the  prime  minister  takes  the  re- 
sponsibility. If  Parliament  will  not  pass  the  bills 
which  he  desires,  he  withdraws  from  office  and 
leaves  some  one  else  to  do  better  if  he  can.  But 
in  the  United  States  we  have  a  president,  represent- 
ing the  people  in  one  way,  and  Congress,  repre- 
senting the  people  in  another  way.  If  the  two 
powers  are  at  issue  each  blames  the  other. 

It  will  occasionally  happen  that  the  president  can 
dominate  Congress  by  his  ability,  as  did  Washing- 
ton or  Lincoln.  It  will  perhaps  somewhat  more 
frequently  happen  that  he  can  manage  it  by  his 
tact,  as  did  McKinley.  But  unless  he  possesses  ex- 
ceptional power  in  one  of  these  directions,  some 
special  agency  is  needed  for  coordinating  the  work 
of  the  two  parts  of  the  government  which  the  Amer- 
ican Constitution  has  not  only  left  independent,  but 
has  tried  to  force  into  a  degree  of  independence 
that  is  quite  unnatural. 

This  agency  is  found  in  the  party  machinery. 

If  any  business  needs  to  be  done  which  requires 
the  cooperation  of  both  the  executive  and  legislative 
departments  of  the  government,  a  quick  way  to  get 


DEMOCRACY  IN  THEORY  AND  PRACTICE    19 

at  it — and  often  the  only  way  to  get  at  it — is  to 
see  that  it  is  approved  in  the  regular  channels  of 
party  organization.  If  it  secures  this  approval,  all 
goes  smoothly.  If  it  does  not  secure  this  approval, 
it  is  blocked  in  all  manner  of  unexpected  ways. 
That  this  state  of  things  exists  is  quite  generally 
recognized.  That  it  is  a  price  we  pay  for  the  bene- 
fits enjoyed  under  the  Constitution  of  the  United 
States  is  not,  I  think,  equally  well  recognized. 

I  do  not,  of  course,  mean  that  our  constitutional 
provisions  are  the  cause  for  the  existence  of  parties. 
Political  parties  are  formed  in  every  legislative  as- 
sembly, among  men  of  all  races  and  all  forms  of 
executive  authority.  Wherever  one  group  of  people 
wants  one  set  of  measures  carried,  and  another 
group  prefers  another  set,  each  will  organize  itself 
in  order  to  give  effect  and  coherence  to  its  views. 
To  any  such  organization  a  certain  amount  of  party 
machinery  is  incident.  But  where  there  is  a  lack 
of  proper  connection  between  the  executive  and  the 
legislature,  as  there  was  in  England  in  the  eighteenth 
century,  or  as  there  is  in  America  under  the  Consti- 
tution today,  we  find  party  organization  taking  a 
peculiar  character.  We  see  parties  primarily  ar- 
ranged, not  to  promote  certain  measures  of  legisla- 
tion, but  to  do  the  work  of  government.  The  party 
machine  as  an  administrative  body  becomes  the 


20  FREEDOM  AND  RESPONSIBILITY 

main  thing ;  the  legislative  measures  with  which  it 
is  identified  are  only  an  incident.  I  believe  this  to 
have  been  the  usual  condition  in  the  United  States, 
especially  in  later  years.  Occasionally  we  find  ex- 
ceptions. The  democratic  party  in  the  generation 
preceding  the  war  was  influenced  by  men  who  cared 
for  state  sovereignty  as  against  centralization,  and 
were  willing  to  sacrifice  office  rather  than  com- 
promise this  principle.  The  republican  party  from 
1856  to  1870  was  dominated  by  men  who  cared  more 
for  free  soil  and  for  the  Union  than  they  did  for 
their  own  positions  of  authority  or  political  power. 
But  these  are  hardly  the  normal  types  of  American 
party  life.  Under  ordinary  circumstances  the  work 
of  persuading  the  executive  and  legislature  to  work 
in  harmony  under  the  somewhat  strained  conditions 
presented  by  the  United  States  Constitution  seems 
more  important  than  the  passing  of  any  particular 
measures;  and  that  side  of  the  party  organization 
naturally  and  inevitably  comes  to  the  front. 

This  method  of  government,  whatever  merits  it 
may  have,  is  obviously  not  government  by  the  peo- 
ple and  for  the  people.  It  is  government  by  a 
particular  section  of  the  people ;  and,  primarily  at 
any  rate,  for  the  Interests  of  that  section.  If  the 
voters  who  form  a  certain  party  are  men  of  liberal 
ideas  and  just  principles,  their  leaders  will  of  course 


DEMOCRACY  IN  THEORY  AND  PRACTICE  21 

not  go  so  far  to  oppress  the  minority  as  they 
would  if  their  constituents  were  narrow-minded 
and  reckless  of  moral  restraint.  But  even  at  best 
partisan  majorities  are  quite  inconsiderate  of  mi- 
nority interests.  I  suppose  all  men,  independent  of 
their  traditional  affiliations,  can  now  see  that  the 
democrats  in  the  years  immediately  preceding  the 
war,  and  the  republicans  in  the  years  immediately 
following  the  war,  were  both  rather  unscrupulous  in 
the  use  of  the  machinery  of  government  to  promote 
the  interests  of  the  sections  which  they  chiefly  rep- 
resented. A  party,  as  its  very  name  implies,  repre- 
sents a  part,  and  not  the  whole.  The  fact  that  it 
has  no  recognized  status  in  the  Constitution  makes 
it  all  the  more  difficult  to  fix  public  responsibilities 
upon  its  real  leaders,  because  they  do  their  work 
without  official  recognition,  and  therefore  without 
the  acceptance  of  those  duties  which  such  recogni- 
tion usually  brings. 

There  is  no  need  of  citing  detailed  instances  of 
wrong  and  oppression  which  come  through  the 
machinery  of  party  government,  or  of  the  tempta- 
tions to  corruption  which  the  existence  of  such 
machinery  furnishes.  We  find  quite  enough  of  this 
set  forth  at  length  in  the  columns  of  any  newspaper 
opposed  to  the  dominant  authority.  I  conceive  that 
there  can  be  no  doubt  on  the  main  propositions  that 


22  FREEDOM  AND  RESPONSIBILITY 

parties  are  organized  for  the  interests  of  a  section 
of  the  community  rather  than  for  the  whole ;  that 
they  have  developed  in  a  way  not  intended  or  ex- 
pected by  the  framers  of  the  Constitution;  that 
these  organizations,  representing  class  interests,  are 
things  which  it  is  extremely  difficult  to  hold  respon- 
sible, legally  or  morally,  in  the  way  that  a  recog- 
nized public  official  could  be  held  responsible ;  and 
that  for  the  sake  of  carrying  an  election  they  may 
commit  themselves  to  measures  which  are  likely  to 
do  great  damage,  not  only  to  the  minority  but  to 
the  interests  of  the  community  as  a  whole.  In  other 
words,  the  separation  of  the  legislative  and  execu- 
tive branches  of  the  government  has  offered  no 
adequate  safeguard  against  the  tyranny  of  the  ma- 
jority over  the  minority.  The  Reconstruction  Acts 
furnished  a  visible  instance  of  such  tyranny,  from 
which  we  have  by  no  means  recovered.  The  cor- 
poration laws  of  certain  states  in  the  years  following 
the  crisis  of  1873  furnished  another  conspicuous 
instance.  Even  in  recent  years  there  has  been  more 
than  one  campaign  fought  out  on  an  issue  of  class 
interests,  in  which  our  escape  from  serious  legisla- 
tive dangers  has  been  very  narrow  indeed. 

Nor  is  it  in  Congress  alone  that  we  suffer  from 
this  tyranny  of  the  majority  through  the  medium 
of  party  organization.     The  increasing  centraliza- 


DEMOCRACY  IN  THEORY  AND  PRACTICE  23 

tion  of  all  authority,  industrial  as  well  as  political, 
and  the  increased  activity  of  communication  be- 
tween different  parts  of  the  body  politic  have  caused 
boards  of  councilmen  or  state  legislatures  to  handle 
matters  which  were  formerly  left  to  the  individual, 
and  national  authorities  to  deal  with  many  prob- 
lems which  were  formerly  entrusted  to  local  ones. 
The  rule  that  every  man  should  mind  his  own 
business  is  not  so  easy  to  follow  as  it  once  was; 
and  when  a  legislator  is  forced  to  mind  other  peo- 
ple's  business,  there  is  a  great  temptation  to  sacri- 
fice interests  which  command  only  a  few  votes  to 
those  which  command  a  great  many. 

Neither  in  nation,  nor  in  state,  nor  in  city,  have 
these  dangers  of  government  interference  been  to 
any  appreciable  degree  avoided  by  the  separation 
of  executive  and  legislative  powers.  For  protection 
against  them  we  rely  upon  the  courts.  The  work 
of  the  courts  in  this  respect,  taking  it  as  a  whole, 
has  been  extremely  salutary.  There  have  indeed 
been  times  when  the  suspicion  of  partisanship  has 
attached  to  American  judicial  utterances ;  but  they 
have  been  singularly  few.  On  the  whole,  federal 
and  state  courts  alike  have  been  not  only  a  protec- 
tion, but  the  one  really  efficient  protection,  of  mi- 
nority interests  against  oppression  by  the  majority. 
Our  constitutional  rights   against  deprivation   of 


24  FREEDOM  AND  RESPONSIBILITY 

personal  liberty,  against  the  taking  of  property 
without  due  process  of  law,  and  against  the  in- 
fringement of  contractual  obligations — not  to  speak 
of  others  less  habitually  called  in  question — 
have  been  defined  and  administered  by  the  courts 
with  a  rare  degree  of  success.  It  has  more  than 
once  happened  that  an  impatient  majority  has  de- 
nounced these  courts  as  instruments  of  partisan- 
ship. The  anti-slavery  leaders,  the  soft  money 
leaders,  and  the  labor  leaders,  have  in  turn  taken 
exception  to  their  utterances,  and  even  ventured 
to  impugn  their  motives.  But  I  think  that  most  in- 
telligent men  who  know  the  history  of  the  country 
will  say  that  our  courts  have  been  the  real  bulwarks 
of  American  liberty ;  and  that  while  Hamilton  and 
his  associates  would  be  somewhat  disappointed  in 
the  working  of  the  machinery  of  legislation  and 
administration  if  they  could  see  it  in  its  present 
shape,  they  would  be  filled  with  admiration  at  the 
work  which  has  been  accomplished  by  the  judiciary. 
I  believe  it  to  be  the  judgment  of  sober-minded  men 
that  the  courts  have  furnished  the  agency  which  has 
guarded  us  against  partisan  excesses,  and  have 
saved  the  American  republic  from  the  necessity  of 
repeating  the  successive  revolutionary  experiences 
which  France  underwent  before  she  could  attain  to 
a  stable  democracy. 


DExMOCRACY  IN  THEORY  AND  PRACTICE  25 

And  yet  this  department  of  our  government,  which 
has  thus  been  essential  to  the  preservation  of  liberty, 
is  precisely  the  one  which  represents  restraint.  This 
is  the  distinctive  function  exercised  by  the  courts. 
Legislature  and  executive  are  means  given  to  allow 
the  people  to  do  what  they  please,  under  certain 
constitutional  forms.  The  judiciary  is  a  means 
given  to  prevent  the  people  from  doing  what  they 
please.  How  can  we  explain  the  fact  that  these 
judicial  restrictions  are  of  the  very  essence  of  free- 
dom? I  answer,  because  the  law  of  the  United 
States,  as  defined  and  administered  by  its  courts, 
represents  not  only  restraint,  but  se?/-restraint ; 
and  a  kind  of  self-restraint  which  any  nation  must 
be  prepared  to  exercise,  if  it  hopes  permanently  to 
enjoy  the  advantages  of  political  freedom. 


II 

THE   BASIS    OF    CIVIL    LIBERTY 

We  saw  in  the  previous  chapter  that  a  democ- 
racy, however  well  organized,  is  liable  to  degenerate 
into  government  by  a  section  of  the  people,  admin- 
istered primarily  to  suit  the  views  and  interests  of 
that  section ;  in  other  words,  that  the  danger  of  the 
tyranny  of  a  majority  is  no  less  real  than  the  danger 
of  the  tyranny  of  a  monarch  or  a  ruling  class.  We 
saw  also  that  the  machinery  of  the  American  Con- 
stitution, which  was  intended  to  reduce  this  danger 
by  the  separation  of  legislative  and  executive  power, 
had  in  some  ways  actually  increased  it,  by  the  need 
which  it  created  for  strong  party  organizations  to 
assist  in  the  work  of  government;  and  that  for  a 
really  effective  check  upon  the  partisan  attempts  of 
the  majority  to  abridge  the  freedom  of  the  minority 
we  had  come  to  rely  on  the  action  of  the  courts. 

But  what  gives  the  courts  this  power  1  What  is 
it  that  enables  them  to  say  to  majorities,  ' '  Thus  far 
shalt  thou  go,  and  no  farther ' '  ?  By  what  right  do 
they  stand  as  an  effective  bar  to  president  or  con- 
gress, to  governor  or  general  assembly? 

26 


THE  BASIS  OF  CIVIL  LIBERTY  27 

Most  people  would  reply:  "They  derive  the 
power  from  the  Constitution  of  the  United  States 
itself."  To  some  extent  this  answer  is  a  true  one. 
The  Constitution  specifically  provides  against  cer- 
tain abuses  of  authority  on  the  part  of  the  executive 
or  the  legislature.  No  person  may  be  deprived  of 
property  without  due  process  of  law.  The  courts 
are  naturally  the  authorities  to  determine  what  con- 
stitutes a  person  and  what  is  due  process  of  law. 
No  state  may  pass  any  statute  impairing  the  obliga- 
tion of  contracts.  The  courts  are  at  hand  to  say 
what  constitutes  an  obligation  of  contract,  and  are 
directly  charged  with  the  duty  of  preventing  its  im- 
pairment. In  any  case  arising  under  either  of  these 
heads — and  a  very  large  number  of  pieces  of  class 
legislation  are  included  under  the  one  or  the  other — 
the  Constitution  furnishes  the  clearest  evidence  that 
the  court  has  the  right  and  duty  to  interfere.  The 
court  can  therefore  rest  its  authority  on  that  docu- 
ment ;  and  it  is  extremely  convenient  for  it  to  do  so, 
because  the  great  majority  of  the  people  loyally 
accept  the  Constitution,  even  when  its  results  work 
adversely  to  their  own  interests. 

But  it  would,  I  think,  be  idle  to  pretend  that 
the  Constitution  was  the  cause  of  judicial  author- 
ity and  of  public  self-restraint.  The  Constitution 
does  not  cause  self-restraint  to  be  practised;  self- 


28  FREEDOM  AND  RESPONSIBILITY 

restraint  causes  the  Constitution  to  be  obeyed.  In 
the  absence  of  such  voluntary  self-restraint,  con- 
stitutional provisions  would  be  a  singularly  in- 
effective bar  against  aggression.  If  people  whose 
interests  are  adversely  affected  by  our  constitu- 
tional limitations  should  choose  to  organize  for  the 
purpose  of  bettering  their  legal  position,  they  would 
often  find  themselves  numerous  enough  to  secure 
the  necessary  amendments.  It  is  not  in  itself  a  very 
difficult  thing  to  get  a  change  made  in  the  United 
States  Constitution.  Those  parts  of  that  instrument 
which  deal  with  our  political  machinery  have  been 
repeatedly  amended.  But  it  is  a  significant  and 
interesting  fact  that  those  parts  which  deal  with 
private  rights  have  not  been  altered,  except  in  the 
single  case  of  the  Fourteenth  Amendment ;  and  this 
alteration  was  largely  unintentional,  for  the  effect 
of  the  Fourteenth  Amendment  in  increasing  the 
immunity  of  corporations  from  adverse  legislation 
was  not  contemplated  at  the  time  of  its  passage. 
People  have  shrunk  from  modifying  a  public  docu- 
ment to  suit  their  own  private  interests. 

Nor  have  the  federal  courts  limited  their  activity 
to  those  points  where  the  Constitution  provided 
a  specific  warrant  for  its  exercise.  They  have  ap- 
plied the  traditional  restraints  and  the  traditional 
methods  of  interpretation  familiar  to  the  law  of 


THE  BASIS  OF  CIVIL  LIBERTY  29 

England  in  such  a  way  as  to  limit  the  power  of  the 
legislature,  even  where  a  statute  did  not  come  into 
direct  conflict  with  constitutional  provisions.  What 
has  been  true  of  the  federal  courts  has  been  equally 
true  of  the  state  courts.  No  small  part  of  the 
judicial  protection  of  minorities  against  the  abuse 
of  the  power  of  the  majority  has  been  accomplished 
by  means  other  than  those  directly  prescribed  in 
the  United  States  Constitution,  and  on  grounds  of 
which  that  instrument  takes  no  cognizance. 

If  we  pass  from  the  United  States  to  England, 
where  there  is  no  document  corresponding  to  the 
Constitution  of  the  United  States,  but  where  the 
habits  of  legal  procedure  and  public  activity  closely 
resemble  our  own,  we  shall  find  the  courts  exercising 
a  similar  power  in  protecting  the  rights  of  the  in- 
dividual. This  power  has  not  the  same  theoretical 
warrant  for  its  exercise  which  exists  in  America. 
The  English  theory  is  that  Parliament  is  legally 
omnipotent;  and  the  existence  of  such  a  theory 
causes  no  small  anxiety  to  some  of  the  conservative 
interests  in  England  at  the  present  day.  But  the 
English  habit  and  practice  is  to  insist  rigidly  on  all 
customary  rights,  whatever  Parliament  may  say 
about  them ;  and  the  effect  of  this  usage  in  limiting 
the  power  of  legislation  makes  England  far  freer 
than  those  countries  which  have  more  explicitly  de- 


30  FREEDOM  AND  RESPONSIBILITY 

fined  constitutional  limitations  but  less  habit  of 
exercising  individual  independence  in  the  face  of  a 
clamorous  majority. 

A  written  constitution  serves  much  the  same  pur- 
pose in  public  law  which  a  fence  serves  in  the  defini- 
tion and  protection  of  private  rights  to  real  estate. 
A  fence  does  not  make  a  boundary;  it  marks  one. 
If  it  is  set  where  a  boundary  line  has  previously 
existed  by  tradition  and  agreement,  it  forms  an  ex- 
ceedingly convenient  means  of  defending  it  against 
encroachments.  If  it  is  set  near  the  boundary 
and  allowed  to  stay  there  unchallenged,  it  may 
in  time  become  itself  the  accepted  boundary.  But 
if  the  attempt  is  made  to  establish  a  factitious 
boundary  by  the  mere  act  of  setting  up  a  fence,  the 
effort  fails.  In  like  manner,  a  constitution  which 
simply  defines  the  powers  and  limitations  of  gov- 
ernmental authority  furnishes  an  excellent  means 
of  defending  private  rights  against  usurpation ;  and 
the  provisions  of  such  a  constitution  may  cause 
rights  to  become  definite  and  defensible  which  pre- 
viously were  uncertain  or  inoperative.  But  a  mere 
paper  constitution,  established  without  reference  to 
previous  usages  and  habits,  is  not  effective  in  cre- 
ating a  new  scheme  of  political  and  social  order. 
The  constitution  is  the  evidence  of  a  limitation,  not 
its  cause. 


THE  BASIS  OF  CIVIL  LIBERTY  31 

The  real  limitation  to  the  unbridled  power  of 
majorities  is  to  be  found  in  the  habit  of  the  Amer- 
ican people  of  governing  themselves  by  tradition 
and  reason.  Not  that  this  habit  is  confined  to  the 
Ajnericans.  It  is  equally  exemplified  among  the 
English,  It  is  possessed,  in  greater  or  less  measure, 
by  every  nation  which  has  succeeded  in  solving 
problems  of  self-government.  In  order  that  men 
may  live  peacefully  and  do  business  successfully 
it  is  necessary  that  their  dealings  with  one  another 
should  be  marked  by  a  high  degree  of  continuity 
and  a  fair  measure  of  good  sense.  These  are  the 
assumptions  on  which  civilized  society  rests.  The 
courts  enable  people  to  carry  this  way  of  doing 
things  into  difficult  cases  where  reason  is  blinded 
by  selfishness,  and  where  possession  of  political 
power  tempts  men  to  depart  from  tradition.  The 
American  judiciary  is  the  part  of  the  United  States 
government  which  bases  its  authority  upon  the 
assumption  that  people  wish  to  be  rational  and  con- 
servative. A  judicial  decision  does  not,  like  a 
statute,  merely  say  what  things  must  be  done;  it 
states  both  precedents  and  reasons  which  show  why 
those  things  must  be  done.  Sometimes,  indeed, 
these  decisions  seem  to  be  too  much  based  on  prec- 
edent alone,  and  too  little  on  reason.  They  seem 
to  the  more  radical  members  of  the  community  to 


32  FREEDOM  AND  RESPONSIBILITY 

preserve  vested  rights  at  the  expense  of  public  in- 
terests. But  this  is  the  safe  side  on  which  to  err. 
Burke,  in  his  Reflections  on  the  French  Revolution, 
has  well  expressed  one  main  reason  for  the  per- 
manence and  success  of  the  government  of  England, 
when  he  says  that  Englishmen  are  afraid  to  cut 
loose  from  prejudice  and  rely  on  individual  reason 
because  they  suspect  that  in  each  man  the  stock  of 
reason  is  small,  and  prefer  to  avail  themselves  of 
the  bank  and  capital  of  ages. 

A  judicial  decision  differs  from  other  edicts  of 
the  government  in  that  it  does  not  involve  an  ar- 
bitrary expression  of  will.  It  puts  the  reasons  for 
the  prescribed  course  of  conduct  in  such  a  form  as 
to  command  general  consent,  first  among  the  ex- 
perts learned  in  the  law,  and  next  among  the  great 
body  of  people  who  are  not  learned  in  the  law,  but 
who  have  the  habit  of  controlling  themselves  accord- 
ing to  custom  and  precedent.  It  may  occasionally 
happen  that  a  legal  question  arises  on  which  no 
such  general  consensus  is  possible.  In  those  cases 
there  will  be  some  vacillation  in  the  decisions  of  the 
court.  This  is  always  unfortunate ;  and  most  of  the 
difficulties  which  menace  judicial  authority  arise 
in  connection  with  cases  of  this  kind.  Statutes 
regarding  corporations,  or  labor,  or  colonial  posses- 
sions, often  deal  with  conditions  which  are  so  far 


THE  BASIS  OF  CIVIL  LIBERTY  33 

novel  that  it  is  not  clear  which  legal  precedents 
most  directly  apply,  or  what  relative  weight  should 
be  given  to  tradition  on  the  one  hand  and  inde- 
pendent judgment  on  the  other.  But  these  points 
of  doubt  are  exceptional  as  compared  with  that 
large  corpus  juris  which  is  so  well  settled  that  peo- 
ple accept  it  as  an  inevitable  part  of  the  conditions 
of  life,  even  when  it  happens  to  work  against  their 
own  private  interests. 

The  more  broadly  we  study  the  history  of  the 
law,  the  more  we  are  impressed  with  this  essentially 
rational  character  of  public  submission  to  judicial 
authority.  Decisions  furnish  precedents,  and  prec- 
edents secure  unquestioned  acquiescence,  because 
the  reason  which  dictated  the  first  decision  still 
holds  good  with  those  who  examine  the  matter 
impartially  in  subsequent  instances.  The  Pragto- 
rian  edict  at  Rome  had  at  first  no  binding  force  on 
any  one,  except  possibly  the  single  magistrate  by 
whom  it  was  issued.  But  as  time  went  on  successive 
praetors  found  it  expedient  and  necessary  to  follow 
the  reasons  which  governed  their  predecessors,  until 
there  grew  up  a  mass  of  equity  jurisprudence  none 
the  less  authoritative  because  of  the  somewhat  in- 
formal manner  in  which  it  had  originated.  There 
is  no  lack  of  more  recent  examples  of  the  same  kind. 
In  some  of  the  state  appellate  courts,  notably  that 


34  FREEDOM  AND  RESPONSIBILITY 

of  Illinois,  it  is  provided  by  statute  that  the  de- 
cisions of  the  judges  shall  furnish  no  precedent  for 
the  action  of  their  successors.  But  the  judges  pub- 
lish reasons  for  their  awards;  and  these  reasons 
continue  to  hold  good  until  conditions  have  changed 
or  until  some  flaw  in  their  logic  can  be  found.  The 
very  act  which  deprives  these  courts  of  the  right 
to  create  precedents  serves  only  to  show  more 
clearly  the  real  nature  of  the  authority  which  gives 
precedent  its  force — ^the  authority  which  reason  ex- 
ercises upon  civilized  man. 

There  is  a  theory  of  judicial  authority  which 
seems  to  conflict  with  this — a  theory  that  law  de- 
pends for  its  force,  not  upon  reason,  but  upon  the 
command  of  a  sovereign.  I  do  not  like  this  way  of 
stating  the  ground  of  legal  authority,  because  it  is 
liable  to  be  misunderstood.  But  when  rightly 
understood  it  does  not  oppose  the  other  view;  it 
confirms  it.  Say,  if  you  please,  that  American  law 
derives  its  force  from  the  command  of  the  sovereign. 
From  what  sovereign  ?  From  the  President  ?  Any 
one  would  scout  the  idea.  From  Congress?  The 
very  essence  of  constitutional  limitation  is  that  Con- 
gress cannot  by  its  mere  command  make  a  law. 
From  the  Supreme  Court  ?  A  member  of  that  court 
would  be  the  last  to  claim  that  his  ipse  dixit,  or  the 
ipsi  dixerunt  of  the  whole  body  of  his  colleagues, 


THE  BASIS  OF  CIVIL  LIBERTY  35 

was  the  source  of  the  authority  of  his  words.  From 
the  Constitution?  A  constitution  is  not  a  person, 
but  an  instrument;  not  an  authority,  but  an  evidence 
of  authority.  The  sovereign  which  stands  behind 
the  authority  of  the  law  is  the  people  of  the  United 
States ;  the  people  as  a  collective  body,  in  the  sense 
in  which  that  word  was  really  meant  by  Jefferson 
and  by  Rousseau.*  Not  a  majority  of  the  people 
voting  by  state  lines,  as  personified  in  the  President ; 
not  a  majority  of  the  people  voting  by  districts,  as 
personified  in  the  House  of  Representatives;  but 
the  people  as  represented  by  a  common  public  senti- 
ment which  includes  all  good  men,  minorities  as  well 
as  majorities,  who  support  the  government  not  as 
a  selfish  means  for  the  promotion  of  their  own 
interest,  but  as  a  common  heritage  which  they  ac- 
cept as  loyal  members  of  a  body  politic,  in  a  spirit 
which  makes  them  ready  to  bear  its  burdens  as  well 
as  to  enjoy  its  benefits. 

In  fact,  the  authority  of  the  courts,  instead  of 
going  beyond  the  moral  sense  of  the  community, 

*  Especially  by  Eousseau.  The  purport  of  the  Social  Con- 
tract has  been  gravely  misunderstood  by  those  who  have  read  it 
only  at  second  hand.  Rousseau  is  very  careful  to  distinguish 
between  that  collective  public  sentiment  which  is  the  true  will 
of  the  people,  and  the  majority  vote  which  is  but  a  makeshift 
for  trying  to  ascertain  that  will  as  well  as  we  can. 


36  FREEDOM  AND  RESPONSIBILITY 

and  establishing  obligations  more  severe  than  those 
which  its  members  would  impose  upon  themselves, 
as  a  rule  keeps  well  within  the  limits  set  by  that 
moral  sense.  It  seems  very  doubtful  whether  a 
free  community  could  exist  unless  the  great  ma- 
jority of  the  members  accepted  moral  duties  much 
wider  than  the  legal  duties  imposed  upon  them  by 
judicial  decisions.  The  obligation  of  a  man  to  sup- 
port his  family  is,  to  some  degree,  laid  down  by  the 
government  and  enforced  by  it ;  but  unless  nineteen- 
twentieths  of  the  community  had  more  industrial 
ambition  for  themselves  and  their  families  than  is 
represented  by  this  minimum  which  the  government 
prescribes,  industrial  progress  or  prosperity  would 
be  out  of  the  question.  What  holds  true  in  this 
field  holds  true  in  a  dozen  others.  The  vast  majority 
of  citizens  find  in  their  own  personal  sympathies 
and  habits  and  consciences  sufficient  motive  to  com- 
pel them  to  perform  most  of  their  duties  to  society. 
What  the  courts  do  is  to  define  those  duties  for  the 
minority  who  do  not  understand  them,  and  to  pro- 
vide an  orderly  means  of  compelling  their  accept- 
ance by  the  yet  smaller  minority  which  repudiates 
them  after  they  have  been  defined.  When  these 
minorities  are  not  small,  but  large,  the  effort  of  the 
court  to  define  and  impose  an  obligation  upon  the 
recalcitrant  community  is  apt  to  be  futile.    Nothing 


THE  BASIS  OF  CIVIL  LIBERTY  37 

was  plainer  than  the  decision  in  the  Dred  Scott 
case ;  yet  the  Fugitive  Slave  Law  was  habitually  set 
at  nought  when  a  slave  reached  Northern  soil.  You 
can  compel  ignorant  men  to  accept  a  statute;  you 
can  force  bad  men  to  obey  it  when  they  do  not  want 
to ;  but  if  a  statute  or  a  judicial  decision  passes  the 
line  of  those  duties  which  good  and  intelligent  men 
as  a  body  accept  and  impose  upon  themselves,  it  is 
at  once  nullified.  The  process  of  nullifying  law 
has  sometimes  been  called  "passive  resistance."  It 
is  in  the  majority  of  instances  sufficiently  described 
as  the  withdrawal  of  active  support.  In  either  case 
the  result  demonstrates  that  most  of  the  work  of 
government  is  done  by  men  who  govern  themselves 
and  say  nothing  about  it.  For  if  any  considerable 
portion  of  these  men  cease  to  govern  themselves  in 
accordance  with  the  law,  its  ineffectiveness  becomes 
at  once  manifest. 

When  people  live  together  in  towns  and  cities 
and  nations,  they  have  to  do  certain  things  which 
they  do  not  like.  Bad  governmental  machinery 
may  increase  the  number  of  these  things,  good 
governmental  machinery  may  diminish  them; 
but  the  necessity  for  doing  some  of  them  is 
always  there.  The  ideal,  so  fondly  cherished 
by  the  philosophers  of  a  hundred  years  ago,  of 
a  complete  system  of  organized  non-interference, 


38  FREEDOM  AND  RESPONSIBILITY 

has  proved  impracticable.  What  is  for  the  in- 
terest of  the  whole  is  often  going  to  be  against 
the  convenience  of  some  of  the  parts.  There  are  in 
the  last  resort  two  means  of  inducing  a  member  of 
the  community,  when  thus  adversely  affected,  to 
subordinate  his  private  interest  to  the  general 
good, — his  own  conscience,  and  the  policeman's 
club.  If  a  large  majority  of  people  are  ready  to 
be  governed  by  their  consciences,  the  exercise  of 
the  policeman's  club  becomes  unnecessary,  except 
upon  that  small  minority  who  are  recognized  as  law- 
breakers. Then,  and  only  then,  can  we  have  real 
democracy. 

Whenever  a  serious  political  emergency  arises, 
we  find  that  the  majority  of  the  American  people 
stand  ready  to  be  governed  by  their  consciences, 
rather  than  by  the  more  obvious  dictates  of  self- 
interest.  This  was  repeatedly  proved  in  various 
stages  of  the  anti-slavery  struggle.  It  was  proved 
under  the  perilous  strain  of  the  Electoral  Commis- 
sion case  of  1876,  when  the  defeated  party  sacrificed 
personal  advantage  and  acquiesced  in  what  seemed 
a  violation  of  justice  for  the  sake  of  that  general 
stability  of  institutions  which  is  essential  to  preva- 
lence of  right  in  the  long  run.  And  it  is  just 
because  the  American  people  as  a  body  are  thus 
prepared  to  accept  the  obligations  and  bear  the 


THE  BASIS  OF  CIVIL  LIBERTY  39 

burdens  of  self-government  that  American  democ- 
racy has  been  able  to  maintain  itself. 

But  what  would  happen  if  a  large  part  of  our 
people  refused  to  accept  the  principle  of  self-gov- 
ernment in  the  true  sense  of  the  word,  and  under- 
took to  assume  the  privileges  of  freedom  without 
understanding  its  responsibilities  ? 

This  question  came  up  in  practice  more  than 
thirty  years  ago,  and  received  an  unexpected 
answer ;  an  answer  which  confirms,  in  rather  start- 
ling fashion,  the  view  that,  even  under  a  democratic 
constitution,  responsibility  is  a  condition  precedent 
to  the  exercise  of  freedom.  At  the  close  of  our  Civil 
War  a  race  which  had  previously  been  held  in  the 
most  abject  slavery  found  itself  suddenly  emanci- 
pated. The  proclamations  of  President  Lincoln, 
followed  by  the  Thirteenth  Amendment  of  the  Con- 
stitution, secured  its  members  personal  liberty. 
The  Fourteenth  Amendment  almost  immediately 
afterward  gave  them  civil  rights ;  and  a  little  later 
the  Fifteenth  Amendment  admitted  them  to  full 
political  power. 

The  first  use  which  they  made  of  their  freedom 
was  disappointing.  Some  abandoned  their  families ; 
a  much  larger  number  abandoned  their  work  for 
longer  or  shorter  periods.  Many  tried  to  secure 
public  offices  for  the  performance  of  whose  duties 


40  FREEDOM  AND  RESPONSIBILITY 

they  were  unfit.  Almost  all  allowed  their  votes  to 
be  utilized  by  unscrupulous  men  as  a  means  of 
establishing  a  corrupt  and  irresponsible  govern- 
ment. The  evils  of  this  misuse  of  freedom  became 
so  great  that  after  the  lapse  of  a  few  years  the 
political  power  of  the  Southern  negro  was  abolished 
by  a  systematic  nullification  of  the  laws  intended 
to  give  him  the  franchise;  and,  although  many  of 
his  personal  rights  were  allowed  to  remain  un- 
challenged, he  was  made  to  feel  that  his  freedom 
was  a  very  different  thing  from  that  which  he  and 
some  of  his  friends  had  anticipated.  He  had  to 
begin  at  the  bottom  of  the  social  scale  and  work  out 
a  capacity  for  freedom  before  he  could  enjoy  its 
privileges. 

As  we  look  back  on  the  history  of  the  years  suc- 
ceeding the  war,  it  is  astonishing  that  men  could 
have  expected  any  other  course  of  events  than  that 
which  actually  took  place.  It  was  not  the  fault  of 
the  negro ;  it  was  the  fault  of  those  who  so  unwisely 
gave  him  political  rights  without  previous  prepara- 
tion. The  history  of  every  country  of  the  world 
shows  that  sudden  grants  of  liberty  are  followed  by 
periods  of  license.  This  was  the  case  in  Germany 
at  the  time  of  the  Reformation,  with  the  advent  of 
religious  liberty;  it  was  the  case  in  France  in  the 
last  years  of  the  eighteenth  century,  with  the  advent 


THE  BASIS  OF  CIVIL  LIBERTY  41 

of  political  liberty ;  it  was  the  case  in  Russia  in  1863, 
with  the  advent  of  industrial  liberty.  All  these 
instances  show  the  impossibility  of  granting  uncon- 
trolled freedom  to  those  who  will  not  take  the  re- 
sponsibilities that  go  with  it.  The  attempt  on  the 
part  of  any  large  group  of  men  to  claim  the  privi- 
leges of  liberty  without  assuming  its  burdens  proves 
so  destructive  to  the  community  that  it  has  to  be 
stopped.  The  North  did  not  realize  this  at  the  close 
of  the  Civil  War.  The  people  of  the  North  had 
accepted  as  an  axiom  the  dictum  of  the  Declaration 
of  Independence  that  all  men  are  created  with  equal 
rights  to  liberty.  They  of  course  restricted  those 
rights  in  the  case  of  minors  and  of  insane  persons. 
But  aside  from  these  exceptions,  based,  apparently 
at  least,  on  physiological  grounds,  they  recognized 
no  limits  to  the  principle  of  liberty  and  equality. 
The  influx  of  uneducated  masses  into  large  cities 
had  strained  the  application  of  this  principle,  but 
it  had  not  forced  men  to  abandon  it  or  modify  their 
habitual  way  of  stating  it.  The  population  of  the 
North,  even  in  the  cities,  was  so  ambitious  indus- 
trially that  it  could  be  persuaded  to  work  for  a 
living  without  the  compulsion  of  a  taskmaster,  and 
so  intelligent  politically  that  the  efforts  of  corrupt 
politicians  to  mislead  the  voters  had  generally  been 
kept  within  moderate  bounds.    When  the  North  saw 


42  FREEDOM  AND  RESPONSIBILITY 

that  these  conditions  did  not  exist  in  the  South  it 
acquiesced  in  the  suppression  of  the  negro  vote  and 
in  the  nullification  of  many  of  the  Reconstruction 
Acts.  The  North  did  it  reluctantly;  but  the  re- 
markable thing  is  that  the  North  should  have  done 
it  at  all,  at  a  time  when  war  memories  were  so  fresh 
and  the  passions  and  misjudgments  of  the  war  were 
so  strong.  The  fact  that  under  these  circumstances 
the  liberty  of  the  negro  was  actually  restricted 
proves  more  clearly  than  anything  else  could  that 
such  restriction  was  necessary  and  inevitable.  How 
long  this  restriction  can  continue  is  another  ques- 
tion. The  recent  industrial  progress  of  the  negro 
race — or  at  any  rate  of  very  considerable  numbers 
of  that  race — puts  the  matter  on  a  new  basis.  It 
looks  as  if  we  had  entered  an  even  more  difficult 
phase  of  the  problem  than  that  which  confronted  us 
after  the  war.  I  shall  not  attempt  to  predict  the 
outcome,  nor  to  give  unasked  advice  to  those  who 
face  its  difficulties  most  closely  and  understand 
them  most  clearly.  But  one  thing  should  be  said, 
and  said  plainly.  The  error  of  those  who  thirty 
years  ago  supposed  that  political  rights  could  be  im- 
mediately given  to  the  negro  before  he  had  achieved 
industrial  responsibility  or  moral  independence  was 
probably  no  greater  than  the  error  of  those  who  to- 
day believe  that  political  rights  can  be  perma- 


THE  BASIS  OF  CIVIL  LIBERTY  43 

nently  withheld  from  the  negro  after  he  shall  have 
achieved  such  responsibility  and  independence. 

We  have  thus  learned  that  the  abstract  doctrine 
that  every  one  had  a  right  to  political  freedom  is 
subject  in  practice  to  certain  important  exceptions. 
We  have  learned  that  where  a  group  of  men  misuse 
their  freedom  on  a  large  scale  they  cannot  be  al- 
lowed to  retain  it  unchallenged.  But  we  may 
properly  go  one  step  farther.  Instead  of  laying 
down  the  principle  of  an  absolute  right  to  freedom, 
and  then  trying  to  describe  certain  exceptional 
cases  where  this  absolute  right  must  be  suspended, 
I  believe  that  it  will  be  at  once  more  logical  and 
more  salutary  if  we  regard  the  right  to  freedom 
as  something  proportionate  to  a  man's  capacity  to 
use  his  freedom  for  the  benefit  of  the  community. 
The  case  of  the  Southern  negro  differs  from  that  of 
many  groups  of  white  men  in  degree  rather  than  in 
kind.*  The  negroes  are  not  the  only  group  of  men 
who  are  nominally  free,  but  really  so  irresponsible 
as  to  be  incapable  of  the  intelligent  exercise  of 

♦  At  least  in  its  political  aspect.  The  physiological  danger 
of  mixture  of  the  two  races  is  another  matter.  It  is  hard  to 
separate  these  two  aspects  of  the  negro  problem  in  our  discus- 
sions or  even  in  our  thoughts ;  but  I  believe  that  the  habitual 
confusion  between  them  does  a  great  deal  of  harm  to  our  clear- 
ness of  judgment,  and  that  we  ought  to  keep  them  as  distinct  as 
we  can. 


44  FREEDOM  AND  RESPONSIBILITY 

freedom.  Whenever  this  combination  exists  it  in- 
volves grave  dangers,  both  to  the  individual  and  to 
the  community.  Freedom  enables  an  intelligent 
and  good  man  to  do  better  things  than  he  could  do 
without  it;  and  when  it  is  thus  used  it  stimulates 
progress,  and  intelligence,  and  goodness.  But  it 
must  be  remembered  that  this  same  freedom  allows 
an  unintelligent  or  bad  man  to  do  worse  things  than 
he  could  do  without  it ;  and  that  if  this  happens  on 
a  large  scale  it  may  prove  destructive  to  the  re- 
sources, and  even  to  the  safety,  of  the  common- 
wealth. In  doubtful  cases,  we  should  extend  free- 
dom rather  than  restrict  it ;  for  freedom,  even  when 
accompanied  by  some  abuses,  stimulates  progress 
and  makes  each  succeeding  generation  more  capable 
of  exercising  it  intelligently.  But  we  cannot  regard 
unrestrained  individual  liberty  either  as  an  abstract 
principle  of  political  philosophy,  or  as  an  ultimate 
goal  of  human  progress.  It  is  essentially  a  means 
rather  than  an  end;  an  institution  rather  than  a 
principle;  a  help  to  the  realization  of  public  mo- 
rality, rather  than  a  postulate  of  public  morality 
itself. 

Freedom,  regarded  in  this  way,  becomes  a  con- 
structive force.  It  is  not  simply  the  absence  of 
restraint,  as  is  alleged  by  Schopenhauer  and  other 
writers  who  look  at  the  subject  from  the  standpoint 


THE  BASIS  OF  CIVIL  LIBERTY  45 

of  the  metaphysician  rather  than  that  of  the  his- 
torian. It  is  the  substitution  of  self-restraint  for 
external  restraint;  the  substitution  of  a  form  of 
restraint  which  promotes  progress  for  a  form 
which  represses  it.  Political  freedom  means  either 
self-government  or  anarchy.  In  the  latter  case  it 
speedily  wrecks  the  nation  that  practises  it.  In 
the  former  case  only  does  it  last  long  enough  to 
attain  the  dignity  of  a  political  institution.  The 
kind  of  freedom  which  means  anarchy  stands  con- 
demned by  its  self-destructive  character.  The  kind 
which  means  self-restraint  is  justified  by  its  effect 
in  combining  order  and  progress. 

Political  thinkers  are  beginning  to  see  this.  We 
are  coming  to  look  at  human  history  as  a  struggle 
for  existence  between  different  methods  of  thought 
and  systems  of  morals,  and  to  find  the  justification 
for  our  systems  of  thought  and  morals  in  the  fact 
that  they  contribute  to  the  survival  and  develop- 
ment of  the  race  which  holds  them.  We  are  coming 
to  regard  political  liberty  not  as  an  abstract  right, 
to  be  demanded  for  its  own  sake,  as  Rousseau 
would  have  demanded  it ;  nor  as  a  dangerous  dream 
of  unbalanced  minds,  to  be  resisted  by  all  cham- 
pions of  order,  as  Metternich  would  have  resisted 
it ;  but  as  an  institution  which,  as  different  nations 
have  worked  it  out  for  themselves,  enables  them  to 


46  FREEDOM  AND  RESPONSIBILITY 

combine  order  with  progress  better  than  any  other 
political  system  which  has  hitherto  been  devised. 
We  have  learned  to  judge  the  merits  of  a  free  gov- 
ernment by  the  degree  in  which  it  realizes  this  com- 
bination. 

But  we  can  apply  this  method  of  analysis  to  other 
forms  of  freedom  besides  political  liberty.  The  man 
who  recognizes  that  political  liberty  is  an  institu- 
tion to  be  judged  by  its  results,  but  who  at  the  same 
time  regards  liberty  of  judgment  in  morals  as  an 
abstract  and  absolute  right,  has  apprehended  but 
half  the  truth.  He  involves  himself  in  contradic- 
tions at  every  turn.  A  people's  politics  and  a  peo- 
ple 's  morals  are  closely  interdependent.  The  causes 
which  justify  the  exercise  of  liberty  of  action  in 
the  one  field  are  closely  connected  with  those  which 
justify  the  exercise  of  liberty  of  judgment  in  the 
other.  Slavery  goes  hand  in  hand  with  fatalism, 
private  property  with  private  judgment.  The  at- 
tempts of  Socrates  and  his  successors  to  teach  people 
the  use  of  private  judgment  in  morals  were  ham- 
pered by  the  fact  that  these  people  lived  under 
a  system  of  slavery,  and  had  not  acquired  the  habit 
of  doing  unpleasant  labor  for  a  remote  end.  The 
efforts  of  Alexander,  two  thousand  years  later,  to 
emancipate  the  Russian  serfs,  were  hampered  by 
the  fact  that  these  serfs  were  fatalists,  who  recog- 


THE  BASIS  OF  CIVIL  LIBERTY  47 

nized  no  moral  motive  save  the  motive  of  compul- 
sion. 

The  history  of  free  institutions  is  a  record  of 
the  gradual  acceptance  of  the  duties  of  self-govern- 
ment, moral  as  well  as  political,  wherein  each  nation 
proves  its  right  to  receive  freedom  by  accepting  the 
responsibilities  that  go  with  it. 

It  is  the  purpose  of  this  book  to  show  the  his- 
torical connection  between  liberty  and  responsi- 
bility in  every  domain  of  human  thought.  As  the 
first  and  most  fundamental  step,  we  shall  trace 
from  its  beginnings  the  theory  of  moral  freedom ; 
and  we  shall  then  be  in  a  position  to  understand 
the  significance  of  the  various  means  used  to  re- 
alize this  freedom,  in  law  or  in  religion,  in  industry 
or  in  politics. 


Ill 

FREEDOM   AS  A  RELIGIOUS   CONCEPTION 

There  is  among  members  of  human  society  an 
assumption  of  freedom,  which  is  apparently  older, 
and  certainly  more  widespread,  than  the  chance  for 
using  that  freedom  under  protection  of  the  law. 
Its  exercise  may  be  contrary  to  public  opinion  in 
primitive  communities;  its  principles  may  be  con- 
trary to  scientific  theory  in  advanced  ones.  But 
the  individual  does,  as  a  matter  of  fact,  assume  that 
he  has  a  choice  of  lines  of  action  and  that  he  exer- 
cises self-control  in  some  shape  in  preferring  one 
to  another.  More  than  this:  society,  from  a  very 
early  period,  in  its  theory  of  offences  and  penalties 
treats  him  as  free  and  demands  that  he  control 
himself  accordingly.  Even  if  the  actual  use  of 
liberty  be  rendered  impossible  by  law,  and  the 
theory  which  underlies  it  be  pronounced  an  absurd- 
ity by  science,  the  mere  conception  of  freedom  of 
the  will  is  a  social  institution  of  the  first  impor- 
tance. Call  it  a  legal  fiction,  if  you  please — its 
importance  in  the  history  of  civilization  is  no  less 
real  on  that  account. 

48 


FREEDOM  AS  A  RELIGIOUS  CONCEPTION    49 

This  assumption  of  freedom,  and  the  conscious- 
ness of  self-restraint  which  goes  with  it,  appear  to 
be  peculiar  to  the  human  race.  It  is  very  doubtful 
whether  animals  in  their  wild  state  have  any  cor- 
responding feelings  or  habits.  Of  course  they  do  a 
great  many  things  involving  physical  inconvenience 
or  pain  which  their  instinct  has  taught  them  to 
undergo  for  a  remote  end ;  and  they  may  even  sacri- 
fice their  individual  lives  for  the  benefit  of  their 
families  and  their  associates.  The  cat  will  incur 
unbounded  danger  and  suffering  to  protect  her 
kittens.  The  bee  will  die  the  most  painful  of  deaths 
rather  than  subject  the  hive  to  pollution.  But 
underlying  all  these  actions  there  is,  as  far  as  we  are 
able  to  judge,  that  remarkable  adaptation*  of  struc- 
ture to  activity  which  produces  what  we  call  in- 
stinct. There  is  a  uniformity  about  the  bee 's  habits 
of  self-sacrifice,  which  is  far  different  from  any- 
thing that  characterizes  the  human  race.  Where 
animals  have  been  modified  by  domestication  the 
situation  is  altered.  We  see  in  such  cases  a  reflec- 
tion of  human  lives  and  human  habits.  But  with 
animals  in  their  wild  state,  where  mental  processes 
and  physical  coordinations  have  developed  side  by 
side  in  the  course  of  hundreds  of  generations,  the 
two  have  become  closely  connected;  and  it  often 
seems  to  be  a  physical  impossibility  for  the  indi- 


50  FREEDOM  AND  RESPONSIBILITY 

vidual  to  evade  the  act  of  self-sacrifice  which  has 
proved  beneficial  to  the  species. 

With  members  of  the  human  race  it  is  far  differ- 
ent. The  physical  structure  does  not  compel  the 
individual  to  conform  to  the  code  of  social  ethics. 
Among  the  lower  animals  each  peculiarity  of  cus- 
tom or  habit  is  associated  with  a  well  marked 
difference  of  physical  organism ;  in  the  human  race 
great  differences  of  custom  subsist  side  by  side  with 
the  very  closest  physical  resemblance.  Among  the 
animals  different  systems  of  ethics  are  commonly 
associated  with  differences  of  species,  of  genus,  and 
of  order ;  in  the  human  race  vast  varieties  of  differ- 
ence exist  within  the  limits  of  what  is  physiolog- 
ically a  single  species.  In  some  way  or  other  man 
has  acquired  the  possibility  of  forming  groups 
which  vary  their  customs  without  correspondingly 
varying  their  structure.  His  ethical  development 
has  not  had  to  wait  for  a  corresponding  physiolog- 
ical development.  It  is  this  characteristic  which 
distinguishes  the  evolution  of  mankind  from  the 
evolution  of  the  lower  animals.  The  main  differ- 
ence is  not,  as  is  so  frequently  said,  that  the  human 
struggle  for  existence  is  a  struggle  between  groups 
instead  of  individuals ;  for  in  more  highly  organized 
forms  of  animal  life  the  subordination  of  the  indi- 
vidual to  the  group  is  just  as  marked  as  in  any 


FREEDOM  AS  A  RELIGIOUS  CONCEPTION    51 

section  of  the  human  race.  The  main  difference  is 
that  the  evolution  of  these  human  groups  is  a  mental 
rather  than  a  physical  process,  to  be  traced  by  the 
historian  rather  than  by  the  neurologist,  and  to  be 
explained  by  the  study  of  institutions  rather  than 
by  the  study  of  tissues. 

Whether  there  may  be  in  the  world  of  insect  life 
developments  more  or  less  similar  to  those  which 
are  going  on  in  human  ethics,  is  a  point  which  it 
would  be  difficult  to  settle.  We  have  too  little 
power  of  understanding  the  sensations  of  the  ant 
or  the  bee  to  hazard  a  guess  at  the  nature  of  their 
mental  processes.  We  can  see  the  community  life 
of  insect  bodies,  and  can  study  their  complex  ethical 
system  with  great  interest;  but  whether  it  can  be 
accompanied,  like  ours,  by  an  individual  reason  and 
individual  conscience,  is  a  matter  beyond  our  ken. 
Be  this  as  it  may, — in  the  vertebrate  world,  at  any 
rate,  there  is  nothing  which  at  all  approximates  to 
the  mental  experience  of  the  human  species. 

Man's  power  of  forming  distinct  ethical  groups 
in  advance  of  marked  physiological  changes  has  its 
advantages  and  disadvantages.  It  has  the  ad- 
vantage of  giving  the  members  of  the  human  species 
far  greater  flexibility  of  action,  and  of  securing 
the  power  of  rapid  progress  which  goes  with  it. 
A  group  of  men  can  in  fifty  years  make  changes  of 


62  FREEDOM  AND  RESPONSIBILITY 

habit  which  an  animal  species — except  under  do- 
mestication— would  hardly  accomplish  in  five  thou- 
sand. The  different  groups  of  which  the  race  is 
composed  can  try  a  hundred  experiments,  good, 
bad,  and  indifferent,  and  give  a  chance  for  survival 
to  that  which  proves  best ;  while  the  animal  species 
is  restricted  to  those  slow  adaptations  which  are 
forced  upon  it  by  constant  pressure  of  external 
circumstance.  In  human  evolution  the  constructive 
force  of  imitation  has  been  added  to  the  destructive 
force  of  elimination  which  characterizes  the  devel- 
opment of  the  lower  animals,  and  has  proved  itself 
much  more  varied  and  more  rapid  in  its  effects. 

But  all  this  gain  is  attended  with  some  loss.  The 
things  that  make  the  progress  of  the  animals  slow 
make  it  sure.  The  things  which  make  the  progress 
of  mankind  quick  make  it  precarious.  If  a  group 
of  men  follow  a  new  example  through  sheer  force 
of  imitation,  and  develop  a  custom  without  waiting 
for  changes  in  their  structure  to  make  it  in  a  man- 
ner compulsory  upon  them,  they  are  liable  to  cease 
to  follow  the  new  custom  when  it  becomes  disagree- 
able, and  to  lose  whatever  good  results  may  have 
been  gained  from  its  adoption.  In  other  words,  the 
opportunity  of  progress  is  accompanied  by  the 
danger  of  reversion.  To  prevent  such  reversion 
social  restraint  becomes  a  necessity.     If  the  body 


FREEDOM  AS  A  RELIGIOUS  CONCEPTION    53 

politic  would  preserve  its  ethical  structure,  it  must 
prevent  the  individual  from  recklessly  following 
out  the  impulses  imposed  by  his  physical  structure. 
It  is  a  matter  of  vital  interest  to  every  man  to 
restrain  himself  and  each  of  his  fellows  from  those 
lapses  against  which  his  physiological  constitution 
affords  no  protection — to  which,  indeed,  it  makes 
him  perpetually  liable. 

The  means  habitually  exercised  to  secure  this 
restraint  have  been  well  described — or  perhaps  we 
should  rather  say  well  conjectured — by  Walter 
Bagehot  in  his  Physics  and  Politics.  They  are 
based  upon  the  savage 's  belief  in  a  complex  system 
of  magical  relations,  friendly  or  hostile,  between 
his  tribe  and  the  various  plants,  animals,  and  ghosts, 
of  which  he  has  known  or  dreamed.  All  these 
curiously  related  beings,  living  or  unliving,  real  or 
imaginary,  are  watchful  to  reward  observance  of 
the  tribal  traditions,  and  yet  more  watchful  to 
punish  their  neglect.  Under  this  system  it  becomes 
possible  to  invest  with  a  supernatural  sanction  un- 
pleasant observances  which  have  proved  beneficial 
to  the  community.  The  freedom  from  pestilence 
which  is  enjoyed  by  a  tribe  that  occasionally  washes 
is  attributed  to  the  will  of  some  spirit  related  to  the 
tribe,  which  insists  upon  this  disagreeable  and  ap- 
parently meaningless  ceremony — a  spirit  which  will 


54  FREEDOM  AND  RESPONSIBILITY 

protect  the  members  if  they  wash  and  punish  them 
if  they  do  not  wash.  For  no  less  potent  than  the 
supernatural  sanction  is  the  collective  character  of 
the  penalty.  It  is  visited  upon  innocent  and  guilty 
alike.  "There  is  no  'limited  liability'  in  the  polit- 
ical notions  of  that  time ;  the  early  tribe  or  nation  is 
a  religious  partnership,  on  which  a  rash  member  by 
a  sudden  impiety  may  bring  utter  ruin.  If  the  state 
is  conceived  thus,  toleration  becomes  wicked :  a  per- 
mitted deviation  from  the  transmitted  ordinances 
becomes  simple  folly, — it  is  a  sacrifice  of  the  hap- 
piness of  the  greatest  number;  it  is  allowing  one 
individual,  for  a  moment's  pleasure  or  a  stupid 
whim,  to  bring  terrible  and  irretrievable  calamity 
upon  all." 

In  the  application  of  this  principle,  the  self- 
interest  of  all  the  other  members  of  the  tribe  was 
enlisted  to  crush  the  offender  who  through  selfish- 
ness or  thoughtlessness  was  tempted  to  disregard 
the  tradition.  However  arbitrary  might  be  the  rule, 
however  unintentional  the  infraction,  all  violation 
was  remorselessly  punished  by  the  whole  tribe ;  for 
the  whole  tribe  was  taught  to  feel  that  the  death  of 
the  offender  was  necessary  in  order  to  prevent  the 
spirits  from  visiting  upon  the  tribe  the  offence  done 
to  their  authority  by  any  single  member  thereof. 
In  this  stage  of  society  the  one  necessary  thing, 


FREEDOM  AS  A  RELIGIOUS  CONCEPTION    55 

more  necessary  than  all  else  put  together,  was  to 
build  up  respect  for  law  and  obedience  to  custom. 
However  wasteful  the  process,  however  irrational 
the  means  used,  the  end  justified  the  means  and 
made  the  process  necessary;  for  when  once  the 
savage  tribe  began  to  treat  the  law  lightly,  the 
result  was  anarchy  and  destruction. 

But  at  a  very  early  period,  if  not  at  the  begin- 
ning, this  external  restraint  upon  individual  con- 
duct was  supplemented  by  observances  intended  to 
promote  the  spirit  of  self-restraint.  It  is  not 
enough  for  men  to  impose  obedience  to  tribal  custom 
upon  others.  They  must  be  led  to  impose  that 
obedience  upon  themselves.  If  they  show  unwill- 
ingness to  do  so  under  ordinary  conditions,  they 
must  be  occasionally  brought  back  to  a  state  where 
they  are  especially  susceptible  to  supernatural 
terrors  and  promises.  The  well-fed,  full-blooded, 
self-sufficient  man  is  in  perpetual  danger  of  dis- 
regarding the  obligations  of  a  custom  to  which  his 
physiological  adaptation  is  imperfect ;  and  if  there 
are  many  such  men  in  a  tribe  the  physical  penalties 
for  violation  of  custom  may  not  be  sufficiently 
prompt  to  secure  the  implicit  observance  which  is 
essential  to  the  authority  of  law  over  the  savage 
mind.  They  must  be  brought  out  of  that  condi- 
tion of  well-fed  contentment.     If  a  man  is  told 


56  FREEDOM  AND  RESPONSIBILITY 

that  he  should  do  a  disagreeable  thing  because  the 
spirit  of  his  grandfather  commands  it,  he  must 
occasionally  be  brought  back  to  the  state  where  he 
sees,  or  thinks  he  sees,  the  spirit  of  his  grandfather. 
This  is  the  common  element  and  purpose  of  the 
manifold  forms  of  religious  observance  on  the  part 
of  half-civilized  peoples,*  It  may  be  accomplished 
by  fasting,  or  it  may  be  accomplished  by  intoxica- 
tion. It  may  be  accomplished  by  music  and  dancing, 
or  by  constrained  posture  and  enforced  vigil.  The 
variety  of  means  involved  shows  the  necessity,  even 
in  this  early  stage  of  society,  for  something  which 
shall  counteract  the  daily  instincts  of  the  natural 
man  and  give  force  to  the  spiritual  precepts  by 
which  the  authority  of  custom  is  enforced. 

But  the  instant  we  make  use  of  self-restraint  to 
supplement  external  restraint,  we  pave  the  way  for 
the  assumption  of  moral  freedom  on  the  part  of  the 
individual.  The  very  observances  which  are  used 
to  prevent  the  exercise  of  freedom  act  as  a  recogni- 
tion of  its  possibility.  If  a  man  is  asked  to  restrain 
himself,  or  even  put  into  a  state  where  that  which 
seemed  natural  and  possible  at  one  moment  is  made 
to  seem  unnatural  and  impossible  at  another  mo- 
ment, the  consciousness  of  a  choice  is  irresistibly 

*  Henry  Rutgers  Marshall,  Instinct  and  Reason.  New  York, 
1898,     Chapter  i,  The  Function  of  Religious  Expression. 


FREEDOM  AS  A  RELIGIOUS  CONCEPTION    57 

brought  home  to  him.  He  differs  from  the  mere 
animal  in  having,  as  St.  Paul  says,  a  law  in  his 
members  which  is  at  war  with  the  law  of  the  spirit. 
The  physiological  adjustments  inherited  from  re- 
mote ancestors  drive  him  one  way ;  the  ethical  rules 
growing  up  out  of  the  recent  development  of  his 
tribe  drive  him  another  way.  Even  though  all 
violation  of  these  rules  be  sternly  repressed,  the 
conflict  of  emotions  still  exists.  It  is  this  duality  of 
adjustment,  this  separation  of  ethical  demands  and 
physical  demands,  which  is  the  distinctive  feature 
of  human  consciousness.  This  word  consciousness 
has  two  quite  distinct  meanings.  Sometimes  it 
means  continuous  sensitiveness — a  series  of  nervous 
actions  which  leave  a  permanent  record  in  the  brain 
of  some  organism.  In  this  sense  it  forms  no  pecul- 
iarity of  the  human  race,  but  is  possessed  in  greater 
or  less  measure  by  a  large  part  of  the  animal  king- 
dom. But  that  other  and  narrower  kind  of  con- 
sciousness, which  implies  an  observation  of  his  own 
mental  processes  on  the  part  of  the  sentient  indi- 
vidual, seems  to  originate  in  this  conflict  between 
the  progressive  demands  of  a  tribal  ethics  and  the 
impulses  of  an  individual  organism  which  has  not 
been  modified  in  accordance  with  those  demands. 
Human  consciousness  grows  out  of  the  alternative 
or  choice  apparently  presented  by  the  operation  of 


58  FREEDOM  AND  RESPONSIBILITY 

these  two  sets  of  motives ;  and  the  religious  means 
which  are  used  to  make  the  ethical  motive  dominant 
emphasize  the  existence  of  this  alternative  and 
strengthen  the  sense  of  choice. 

But  though  this  subjective  sense  of  freedom  must 
have  been  present  at  a  very  early  stage  of  society, 
as  soon  as  a  man  separated  ethical  from  physical 
motives,  the  objective  idea  of  freedom  as  a  practical 
possibility  was  still  very  far  from  being  realized  or 
admitted.  Even  if  a  man  felt  himself  to  be  free-, 
he  did  not  tolerate  such  freedom  on  the  part  of 
others,  nor  did  others  allow  its  exercise  on  his  part. 
Liberty  was  a  danger  to  be  repressed,  not  an  agency 
to  be  utilized.  From  the  standpoint  of  the  tribe  the 
mere  recognition  of  freedom  was  extremely  peril- 
ous. Its  exercise  by  any  one  member  might  involve 
the  tribe  as  a  whole  in  the  supernatural  dangers  of 
the  wrath  of  the  gods.  The  resulting  evil  to  the 
tribe  was  about  equally  great  whether  that  wrath 
was  actually  manifested  or  not.  In  the  former  case 
the  tribe  suffered,  or  thought  it  suffered,  from  the 
anger  of  the  gods ;  in  the  latter  case  it  suffered  from 
the  contempt  of  law  which  was  engendered  by  the 
neglect  of  the  gods  to  punish  its  violation.  And, 
wholly  aside  from  these  supernatural  dangers,  there 
was  a  constant  risk  that  the  savage,  freed  from  the 
restraint  of  absolute  authority,  would  do  things 


FREEDOM  AS  A  RELIGIOUS  CONCEPTION    59 

which  were  dangerous  to  discipline  in  times  of  war, 
and  to  public  safety  and  comfort  in  times  of  peace. 
Both  these  perils  had  to  be  avoided  before  moral 
freedom  could  develop  from  a  mere  conception  to 
an  institution.  A  large  part  of  the  history  of  moral 
progress  is  connected  with  the  development  of 
means  for  the  avoidance  of  these  two  dangers. 

The  chief  method  devised  to  avoid  the  super- 
natural dangers  from  violation  of  tribal  morality 
was  the  system  of  expiation — a  system  which  should 
satisfy  the  offended  majesty  of  the  gods  without  re- 
quiring the  death  of  each  offending  member  of  the 
tribe.  The  change  of  conception  did  not  allow 
violations  of  law  to  go  unpunished,  or  imply  that 
the  offended  gods  could  be  satisfied  with  anything 
less  than  the  death  penalty.  But  it  became  possible 
to  apply  the  death  penalty  vicariously — to  appease 
the  spirits  by  the  blood,  not  of  a  member  of  the 
offending  tribe,  but  of  some  one  of  the  animals 
which  were  supposed  to  bear  close  kinship  to  that 
tribe  and  its  members.  This  was  the  origin  of  the 
expiatory  sacrifice — the  sin  offering  of  the  Old 
Testament — as  distinct  from  the  honorific  sacrifice 
or  thank  offering. 

Judged  by  modern  ideas,  the  whole  theory  of 
sacrificial  atonement  is  unjust  and  almost  sacri- 
legious.    It  is  based  on  the  assumption  of  divine 


60  FREEDOM  AND  RESPONSIBILITY 

vindictiveness.  The  majesty  of  outraged  law  de- 
mands a  victim.  If  the  right  person  can  be  pun- 
ished, well  and  good ;  if  not,  the  next  best  thing  is 
to  punish  the  wrong  person.  But  to  the  savage  mind 
this  vicarious  punishment  had  a  real  use,  in  allowing 
the  life  of  the  accidental  transgressor  to  be  saved 
without  producing  contempt  for  law  in  his  mind 
and  the  mind  of  others.  The  savage  had  reached  a 
mental  stage  where  the  process  of  atonement  or 
expiation  could  be  allowed;  and  a  certain  degree 
of  mental  freedom  was  given  him  thereby.  For  the 
violation  of  tribal  custom,  instead  of  being  a  thing 
which  separated  the  offender  forever  from  fellow- 
ship, was  now  regarded  as  a  possible  incident  of 
life — always  to  be  deplored,  but  not  always  to  be 
prevented.  The  absolute  rigidity  of  a  religious  sys- 
tem which  tolerated  no  lapses  on  the  part  of  any 
individual,  gave  place  to  the  greater  freedom  of 
one  which  provided  possibilities  of  atonement  and 
forgiveness  to  him  who  had  transgressed  its  pro- 
visions. 

This  development  was  rapidly  followed  by  an- 
other, or  rather  by  two  others  which  have  inter- 
mixed in  varying  proportions  in  the  history  of 
different  races.  One  was  the  separation  of  law 
from  morals ;  the  other  was  the  recognition  of  per- 
sonal responsibility,  in  distinction  from  tribal  re- 


FREEDOM  AS  A  RELIGIOUS  CONCEPTION    61 

sponsibility,  as  the  groundwork  of  our  theory  of 
punishment. 

The  separation  of  law  from  morals  began  as  soon 
as  sacrificial  procedure  was  cljarly  defined  and 
ordered.  The  attempt  to  provide  means  by  which 
one  set  of  crimes  could  be  expiated  led  people  to 
distinguish  them  from  that  other  set  of  crimes  which 
could  not  be  expiated ;  to  make  a  difference  between 
things  which  offended  the  gods  more  obviously  than 
they  endangered  the  tribe,  and  things  which  en- 
dangered the  tribe  more  obviously  than  they  offend- 
ed the  gods.  Prominent  among  the  latter  class  were 
those  offences  which  interfered  with  military  disci- 
pline in  time  of  war  and  with  public  security 
in  time  of  peace.  They  jeopardized  the  community ; 
atonement  was  therefore  insufiicient  and  punish- 
ment was  necessary.  This  punishment  was,  how- 
ever, no  longer  executed  by  the  whole  tribe,  but 
by  the  military  authorities,  acting  more  or  less 
directly  under  the  advice  of  the  priests.*  The 
offender  was  punished,  not  because  he  had  alienated 
the  gods — this  reason  was  given  only  in  case  of 
certain  acts  of  sacrilege  or  impiety — but  because 

*  This  Tiew  holds  good  whether  we  accept  the  theory  of  Sa- 
Tigny,  that  this  development  of  law  was  an  orderly  and  sponta- 
neous process,  or  the  theory  of  Ihering,  that  it  was  accomplished 
by  a  succession  of  governmental  acts  which  seemed  revolution- 
ary. 


62  FREEDOM  AND  RESPONSIBILITY 

he  had  jeopardized  the  public  security ;  not  because 
he  had  involved  the  members  of  the  tribe  in  a  col- 
lective wrong,  but  because  he  had  done  a  personal 
wrong  to  the  other  members  of  the  tribe. 

This  idea  of  personal  responsibility,  as  distinct 
from  tribal  responsibility,  spread  very  rapidly  and 
altered  the  whole  character  of  the  penological  sys- 
tem. If  offences  against  public  security  in  war  and 
in  peace  were  personal  matters,  it  was  natural  to 
regard  many  other  offences  in  the  same  light,  and  to 
deal  with  the  offender,  not  as  a  man  who  had  in- 
volved the  tribe  in  a  quarrel  with  the  gods,  and 
must  therefore  be  put  to  death  to  avert  divine  dis- 
pleasure, but  as  a  man  who  had  done  a  greater  or 
less  degree  of  personal  wrong,  and  whose  penalty 
could  be  made  heavy  or  light  according  to  his  degree 
of  guilt.  Intentional  violations  of  tribal  customs 
were  still  punished  by  death.  They  were  regarded 
as  acts  of  sacrilege ;  as  sins  against  the  Holy  Ghost, 
which  could  not  be  forgiven.  But  accidental  viola- 
tions of  law  or  custom,  where  the  intent  to  affront 
the  gods  was  absent,  could  be  expiated  by  lighter 
penalties  and  forgiven  by  the  offended  deities. 

The  progress  from  polytheism  to  monotheism — 
and,  in  spite  of  many  reversions  and  lapses,  the 
history  of  civilization  is  marked  by  such  progress — 
inclined  people  more  and  more  toward  this  rational 


FREEDOM  AS  A  RELIGIOUS  CONCEPTION    63 

classification  of  offences  and  penalties.  If  there 
were  many  gods,  at  war  with  one  another,  each  god 
was  necessarily  anxious  to  vindicate  his  authority 
against  the  least  appearance  of  neglect  or  contempt. 
Where  there  was  but  one  god,  his  authority  was  too 
strong  to  be  jeopardized  by  accidental  pieces  of 
neglect,  and  the  penalties  of  such  a  religion  could 
be  reserved  for  those  who  habitually  or  intention- 
ally violated  the  more  serious  articles  of  the  moral 
code. 

And  thus  out  of  the  old  chaos  of  tribal  customs, 
which  were  neither  law  in  the  modern  sense  nor 
morals  in  the  modern  sense,  there  was  developed  a 
systematic  set  of  penalties  for  specific  offences. 
Where  these  offences  endangered  military  disci- 
pline they  were  defined  by  military  authorities. 
Where  they  endangered  public  safety  in  time  of 
peace,  the  military  and  the  religious  authorities 
shared  in  defining  them — ^the  former  influence  being 
generally  stronger  among  the  nations  of  the  West- 
ern world,  and  the  latter  among  those  of  the  Eastern 
world.  Where  they  affected  the  foundations  of 
morality  rather  than  the  immediate  needs  of  disci'- 
pline  or  public  security,  the  definition  was  almost 
completely  in  the  hands  of  the  priests.  But  in  all 
these  cases  there  was  a  tendency  to  use  the  organized 
military  force  of  the  community  for  the  punish- 


64  FREEDOM  AND  RESPONSIBILITY 

ment  and  represssion  of  these  offences.  In  place 
of  the  old-fashioned  lynch  law,  administered  by  the 
whole  tribe  under  the  influence  of  blinding  passion, 
there  was  an  orderly  proof  of  guilt  and  an  orderly 
application  of  the  corresponding  penalty. 

This  system  of  penalties  for  offences  against  pub- 
lic security,  of  procedure  for  proving  them,  of 
definitions  of  wrong  for  which  the  various  penalties 
would  be  visited,  and  of  definitions  of  right  cor- 
responding to  these  definitions  of  wrong,  received 
the  name  of  law.  The  residuum  which  was  left  of 
the  old  body  of  tribal  customs,  for  whose  violation 
no  specific  penalty  could  be  provided  other  than 
disapproval  or  ostracism  on  the  part  of  the  tribe 
and  personal  displeasure  on  the  part  of  the  gods, 
received  the  name  of  morals. 

Morality,  after  law  has  thus  been  separated  from 
it,  differs  from  the  older  body  of  tribal  morality  in 
several  ways.  It  has  less  visible  force  behind  it.  It 
allows  the  individual  greater  chance  to  break  its 
rules.  But  it  can  at  the  same  time  extend  those 
rules  over  a  far  wider  sphere  of  human  activity  than 
would  be  possible  if  it  relied  primarily  on  physical 
force  and  took  cognizance  only  of  those  offences 
where  the  slightest  deviation  from  its  code  could 
be  summarily  punished.  There  is  a  story  of  an  Eton 
head  master,  in  the  old  days  when  flogging  was 


FREEDOM  AS  A  RELIGIOUS  CONCEPTION    65 

constant  and  universal,  who  expounded  Scripture 
as  follows:  *'  'Blessed  are  the  pure  in  heart.' 
Mind  that,  boys.  The  Bible  says  it  is  your  duty  to 
be  pure  in  heart.  If  you  are  not  pure  in  heart,  I  '11 
flog  you."  This  exposition  represents  perfectly 
the  mental  attitude  of  the  savage  world,  which  saw 
no  sense  in  a  precept  that  went  beyond  the  domain 
of  outward  acts  to  be  required  and  of  physical  pen- 
alties for  non-compliance.  But  a  large  part  of  the 
morality  of  civilized  nations  deals  with  spheres  of 
conduct  where  it  is  not  always  possible  to  prevent 
deviations  from  the  standard,  to  prove  the  existence 
of  offences,  or  to  visit  adequate  physical  penalties. 
The  fact  that  modern  society  has  law  as  well  as 
morals — that  it  has  means  of  preventing  or  repress- 
ing acts  which  furnish  a  direct  menace  to  public 
security — allows  it  to  tolerate  a  number  of  acts 
which  it  disapproves  but  which  do  not  menace  pub- 
lic security.  It  can  without  overwhelming  danger  to 
itself  sit  still  and  wait  for  the  slow  working  out  of 
the  more  subtle  moral  penalties  which  are  to  visit 
the  offender. 

"What  is  this  moral  penalty  for  violations  of 
public  sentiment  of  which  the  law  cannot  take  cog- 
nizance ? 

In  early  times  people  thought  that  it  was  the 
displeasure  of  the  gods,  as  manifested  by  retribu- 


66  FREEDOM  AND  RESPONSIBILITY 

tion  in  this  life.  In  this  theory  there  was  the  great 
difficulty  that  the  good  man  did  not  always  enjoy 
external  prosperity.  The  whole  book  of  Job  is  an 
interesting  illustration  of  the  difficulties  which  this 
fact  presented  when  people  begun  to  reason  about 
it.  And  yet  it  is  significant  that  after  all  the  really 
able  reasoning  in  the  book  of  Job,  the  author  finally, 
finds  it  necessary  to  make  good  the  loss  of  Job's 
children,  and  give  him  twice  as  many  cattle  as  he 
possessed  before  the  days  of  his  adversity, — show- 
ing a  certain  want  of  confidence  in  his  moral  con- 
clusions unless  they  are  emphasized  by  a  tangible 
token  of  return  to  favor.  In  a  later  stage  of 
thought,  some  men  have  looked  to  a  future  life  as 
a  place  where  matters  should  be  set  right — where 
the  bad  who  had  enjoyed  worldly  prosperity  should 
be  punished,  and  the  good  who  had  suffered  ad- 
versity should  be  rewarded ;  and  others,  who  have 
not  found  their  minds  able  to  accept  the  evidence 
of  such  a  system  of  future  rewards  and  punish- 
ments, have  thought  that  the  good  man  might  seek 
his  reward  in  the  approval  of  good  men,  even  where 
they  were  relatively  few ;  and  in  the  approval  of  his 
own  conscience,  where  there  was  none  but  himself 
good. 

But   whatever  the   sanction  and   whatever  the 
means  of  enforcement  of  moral  law,  there  is  in  all 


FREEDOM  AS  A  RELIGIOUS  CONCEPTION    67 

these  modern  systems  an  acceptance  of — nay,  an  in- 
sistence upon — moral  responsibility.  You  are  pun- 
ished for  your  offences  not,  as  was  the  case  under 
the  old  system,  because  an  outraged  god  wishes  to 
take  vengeance  upon  the  tribe,  and  you  are  sacri- 
ficed to  his  rage ;  but  because  you,  as  an  individual, 
have  the  choice  between  doing  right  and  doing 
wrong,  and  have  done  wrong.  You  are  allowed  to 
take  the  choice,  because  a  wider  and  higher  morality 
can  be  worked  out  in  this  way  than  in  any 
other.  The  conflict  between  selfish  and  unselfish 
motives  in  the  human  heart  is  frankly  recognized, 
and  is  used  as  an  instrument  for  bringing  ethical 
obligation  home  to  the  individual.  We  no  longer 
live  under  a  moral  despotism  which  says:  ''You 
must  do  this ;  you  must  do  that. ' '  Precepts  which 
take  this  shape  are  not  morality,  they  are  law ;  and, 
as  we  shall  see  in  a  subsequent  lecture,  only  a  por- 
tion of  the  law  at  that.  Within  the  domain  of 
morality  a  man  is  told :  ' '  You  may  do  this,  or  you 
may  do  that.  You  may  choose  the  selfish  side,  you 
may  choose  the  unselfish  side.  Yours  is  the  re- 
sponsibility of  deciding,  yours  the  guilt  if  you  de- 
cide in  the  way  which  religion  or  morality  disap- 
proves." This  is  the  process  of  education  used  by 
parents  on  a  small  scale  as  soon  as  their  children 
are  old  enough  to  take  responsibility.     It  is  used 


68  FREEDOM  AND  RESPONSIBILITY 

by  the  community  on  a  larger  scale  in  judging  the 
action  of  its  members  in  public  and  private  business, 
as  long  as  they  have  the  strength  and  intelligence 
to  exercise  independence  of  judgment.  To  a  few 
who  are  notably  deficient  in  ordinary  brain  power 
the  community  gives  the  name  of  insane  persons. 
It  releases  them  from  responsibility,  and  in  case  of 
need  subjects  them  to  physical  restraint  as  a  means 
of  preventing  harm  to  themselves  and  others.  The 
rest  of  the  world  it  treats  as  morally  free  and  holds 
morally  responsible. 

In  so  doing  it  accomplishes  two  ends.  In  the  first 
place,  it  secures  more  intelligent  conduct  than  is 
possible  when  every  one  is  held  in  leading  strings. 
In  some  cases  the  moral  authority  of  the  community 
loses  by  the  process,  in  others  it  gains ;  but  on  the 
whole  the  gain  is  much  greater  than  the  loss.  Re- 
lieve a  boy  or  man  from  tutelage,  and  you  make 
it  possible  for  him  to  become  much  worse  than  he 
otherwise  might ;  but  if  he  will  control  himself  by 
force  of  his  own  will,  without  waiting  for  yours  to 
dominate  him,  you  not  only  save  wasteful  effort 
on  your  own  part,  but  you  can  rely  on  him  to  carry 
his  goodness  into  a  number  of  fields  where  your 
supervision  would  be  inadequate  and  fruitless.  In 
matters  of  law,  the  man  who  always  has  a  policeman 
to  watch  him  may  be  relied  upon  to  be  good  in  the 


FREEDOM  AS  A  RELIGIOUS  CONCEPTION    69 

policeman 's  presence.  You  cannot  tell  what  would 
happen  when  the  policeman  goes  to  sleep,  or  when 
the  man  can  run  faster  than  the  policeman.  The 
analogy  holds  perfectly  in  the  matter  of  morality, 
and  is  one  of  the  reasons  why  theories  of  personal 
responsibility  and  freedom  of  the  will  are  not  only 
tolerated,  but  actually  taught. 

There  is,  however,  another  reason,  and  perhaps 
an  equally  powerful  one,  for  insistence  upon  these 
theories.  As  has  been  already  said,  the  principle  of 
equity,  of  justice,  of  payment  for  personal  merit  or 
demerit,  is  prominent  in  our  whole  judicial  system. 
But  you  cannot,  without  violation  of  this  theory  of 
justice,  punish  a  man  for  a  thing  for  which  he  is 
not  responsible.  If  the  malefactor  was  compelled 
by  a  higher  power  to  commit  wrongs,  it  is  not  for 
this  higher  power  to  condemn  him.  If  the  sinner 
sins,  not  by  his  own  choice  but  under  the  influence 
of  irresistible  motives,  the  ruler  that  punishes  him 
in  this  world,  and  the  god  that  punishes  him  in  the 
next,  are  both  guilty  of  violations  of  justice.  We 
may  try  to  explain  our  penological  system  as  a 
method  for  the  prevention  of  crime,  our  theological 
system  as  an  explanation  of  the  order  of  a  universe, 
and  disclaim  in  either  case  any  obligation  to  be  just 
to  individuals.  But  the  moral  sense  of  those  who 
reason  about  these  things  today  demands  some  dis- 


70  FREEDOM  AND  RESPONSIBILITY 

tributive  fairness  in  the  allotment  of  rewards  and 
punishments.  If  a  man  really  has  a  choice  this 
necessity  is  met.  To  save  its  sense  of  justice,  while 
imposing  physical  penalties  and  preaching  moral 
ones,  society  asserts  the  existence  of  such  a  choice 
and  of  the  responsibility  that  goes  with  it.  These 
facts  go  far  to  explain  the  general  teaching  and 
general  acceptance  of  the  theory  of  freedom  of  the 
will.  From  the  standpoint  of  modern  science  this 
theory  is  little  short  of  an  absurdity.  From  the 
standpoint  of  modern  morals,  it  is  little  short  of  a 
necessity.  The  community  must  compel  its  members 
to  exercise  self-control,  and  must  justify  itself  for 
punishing  them  when  they  fail  to  exercise  it.  Both 
of  these  results  are  secured  by  the  teaching  of  the 
freedom  of  the  will. 

This  theory,  which  regards  the  freedom  of  the 
will  as  an  institution  rather  than  as  a  metaphysical 
conception,  finds  much  to  justify  it  in  history. 
While  it  is  very  difficult  to  enter  into  the  thoughts 
and  feelings  of  peoples  in  a  state  of  civilization 
less  advanced  than  our  own,  it  seems  quite  clear 
that  the  teaching  and  acceptance  of  free  will  has 
gone  hand  in  hand  with  the  development  of  self- 
control  and  sense  of  justice.  This  historical  ex- 
planation of  the  idea  of  free  will  seems  more 
satisfactory    than    the    psychological    explanation 


FREEDOM  AS  A  RELIGIOUS  CONCEPTION     71 

current  among  a  group  of  writers  of  whom  Leslie 
Stephen  may  serve  as  an  example.  These  writers 
regard  the  freedom  of  the  will  as  an  inference  which 
we  draw  from  our  own  mental  uncertainty.  We  do 
not  know,  for  instance,  whether  it  will  be  our  right 
hand  or  our  left  hand  which  we  next  lift ;  and  from 
our  own  ignorance  on  this  point  we  assume  that  it 
is  altogether  and  wholly  undetermined.  Now  it 
may  very  well  he  that  this  sort  of  uncertainty  has 
its  effect  in  securing  more  ready  and  universal  ac- 
ceptance of  the  theory  than  would  otherwise  have 
been  possible.  It  is  quite  conceivable  that  a  few 
men,  reasoning  on  a  basis  of  this  uncertainty,  might 
have  worked  out  for  themselves  a  metaphysical 
theory  of  free  will  on  that  basis  alone.  But  its 
universal  acceptance  as  a  working  hypothesis  in 
daily  life,  even  on  the  part  of  those  who  do  not 
assent  to  it  as  a  scientific  principle,  is  due  primarily 
to  its  overwhelming  importance  in  the  history  of 
morals.  By  the  imposition  of  that  sense  of  re- 
sponsibility which  goes  with  the  assumption  of  free- 
dom, society  is  able  to  extend  its  moral  restraints 
over  those  spheres  of  action  which  can  only  be 
regulated  by  self-control ;  and  is  able  also  to  impose 
the  necessary  penalties,  spiritual  or  temporal,  upon 
wrong-doers  of  various  classes,  without  violating  its 
own  sense  of  justice.    The  theory  of  freedom  of  the 


72  FREEDOM  AND  RESPONSIBILITY 

will  is  a  legal  conception  devised  and  adapted  for 
this  purpose.  It  is  not  an  inference  which  a  man 
draws  from  his  own  uncertainty  as  to  what  he  is 
going  to  do.  It  is  a  thing  which  has  been  taught 
him  by  the  community,  and  which  he  in  turn  teaches 
to  other  members  of  the  community  as  a  means  of 
securing  responsibility  and  rational  conduct  over 
a  wider  range  of  fields  than  has  been  possible  under 
any  other  intellectual  system.  Judged  in  this  way, 
the  freedom  of  the  will  is  not  a  postulate  of  all 
thinking,  as  its  advocates  would  have  us  believe, 
nor  an  absurdity  destructive  of  all  scientific  think- 
ing, as  would  be  charged  by  its  opponents;  but  a 
legal  conception,  developed  in  the  history  of  the 
human  race  as  a  means  of  securing  that  moral  re- 
sponsibility which  is  necessary  for  the  exercise  of 
all  forms  of  legal  and  industrial  freedom  in  the 
complex  life  of  civilized  communities. 


IV 

FREEDOM  AS  A  LEGAL  INSTITUTION 

A  HUNDRED  years  ago  a  great  deal  was  said  about 
the  gradual  passage  of  the  human  race  from  a  sys- 
tem of  authority  to  a  system  of  liberty.  It  was 
supposed  that  in  early  ages  different  tribes  and 
peoples  had  been  subjected  to  compulsion  which 
prevented  them  from  doing  what  they  wanted  to 
do  and  had  a  natural  right  to  do ;  but  that  in  later 
times  they  gradually  came  to  the  enjoyment  of  that 
right  and  gained  the  power  to  act  as  they  pleased. 
As  long  as  democracy  was  not  tried  on  a  large  scale, 
this  theory  of  the  nature  of  political  progress  did 
little  harm.  But  whenever  it  was  extensively  put 
in  practice — whenever,  in  short,  nations  undertook 
to  exercise  freedom  without  self-imposed  responsi- 
bility— it  made  trouble.  As  long  as  the  so-called 
democracies  of  Greece  were  really  aristocracies, 
managed  by  conservative  men  who  lived  in  the  fear 
of  the  gods,  matters  went  fairly  well,  although — or 
perhaps  because — the  amount  of  liberty  actually 
enjoyed  in  such  communities  was  not  very  great. 
73 


74  FREEDOM  AND  RESPONSIBILITY 

But  when  the  influences  of  luxury  and  the  teachings 
of  sophistical  philosophers  led  the  Athenian  youth 
to  make  their  own  inclinations  the  real  guide  of 
their  conduct  as  well  as  the  nominal  one,  the 
Athenian  state  went  to  pieces.  Similar  conse- 
quences have  followed  the  irresponsible  exercise  of 
liberty  in  all  other  places,  whether  it  worked  in  the 
direction  of  self-indulgence,  as  at  Rome,  or  of  re- 
ligious fanaticism,  as  at  Miinster,  or  of  political 
violence,  as  at  Paris.  The  result  was  in  each  case 
suicidal. 

A  better  statement  of  the  history  of  modern  free- 
dom, and  one  which  would  command  more  universal 
assent  among  critical  observers  at  the  beginning  of 
the  twentieth  century,  is  that  it  represents  a  passage 
from  a  system  of  obligations  imposed  by  the  com- 
munity to  a  system  of  self-imposed  obligations. 
Duty,  in  the  early  stages  of  society,  is  enforced  by 
lynch  law.  In  the  later  stages  of  society  it  is  en- 
forced by  the  individual  conscience.  It  is  not  that 
the  obligations  recognized  are  narrower  or  less  ex- 
acting in  the  latter  case  than  in  the  former.  They 
tend  in  fact  to  become  wider  and  more  exacting. 
But  the  method  of  enforcement  allows  the  indi- 
vidual to  get  at  things  in  his  own  way  with  less 
interference  from  others.  We  have  passed  from  a 
system  of  status,  where  each  man  was  born  into  a 


FREEDOM  AS  A  LEGAL  INSTITUTION      75 

set  of  legal  rights  and  duties  imposed  upon  him  for 
all  time,  to  a  system  of  contract,  where  each  man's 
rights  and  duties  are  largely  those  which  he  has 
made  for  himself.  This  change  has  not  enabled  a 
man  to  relieve  himself  from  obligations  to  his  fellow 
men.  It  has  allowed  those  obligations  to  take  forms 
suited  to  the  varied  powers  of  the  individual  and 
the  varied  needs  of  society. 

In  one  sense,  this  system  of  self-imposed  obliga- 
tions is  a  mere  corollary  of  the  theory  of  moral 
freedom  as  developed  in  the  last  lecture.  But  it  is 
a  corollary  or  inference  which  it  is  not  always  easy 
for  people  to  draw.  It  is  one  thing  to  accept  the 
theory  that  each  man  is  responsible  for  his  own 
conduct.  It  is  a  very  different  thing  to  sit  calmly 
by  and  see  him  indulge  in  conduct  at  variance  with 
our  preconceived  notions.  In  other  words,  the 
recognition  of  freedom  of  the  will  does  not  carry 
with  it  either  civil  liberty  or  religious  toleration. 
It  is  often  treated  as  an  abstract  principle,  useful 
in  preaching  to  others  the  duty  of  self-control,  or  in 
justifying  us  for  punishing  them  when  they  do  not 
control  themselves  in  the  manner  which  society  ap- 
proves, but  not  compelling  us  to  grant  them  any 
actual  freedom  of  deed,  of  speech,  or  even  of 
thought. 

Indeed,   the   notion   of   basing   real    liberty   of 


76  FREEDOM  AND  RESPONSIBILITY 

thought  or  action  upon  personal  responsibility  is  a 
comparatively  modern  one.  In  the  early  stages 
of  society  most  of  the  liberty  which  existed  was 
based  upon  irresponsibility.  If  a  man  enjoyed  free- 
dom of  action,  it  was  because  he  was  too  strong  to 
be  subjected  to  the  laws.  Deeds  of  violence,  for 
which  the  weak  man  would  have  been  put  to  death, 
in  the  case  of  the  strong  man  went  unpunished  or 
were  condoned  for  a  wholly  inadequate  fine.  And 
if  a  man  was  allowed  any  freedom  of  thought — or 
any  freedom  in  the  expression  of  his  thoughts — it 
was  for  a  somewhat  similar  reason.  It  was  because 
the  contagious  influence  of  his  frenzy  compelled 
the  priesthood  to  tolerate  his  utterances,  whether 
they  would  or  no. 

What  were  the  steps  by  which  society  passed 
from  this  early  condition,  where  all  freedom,  legal 
and  moral,  lay  outside  of  the  domain  of  normal  law, 
to  one  like  the  present,  where  freedom  of  action 
is  greatest  for  him  who  can  furnish  the  most  se- 
curity for  abiding  by  the  law,  and  where  freedom 
of  thought  is  largest  to  him  who  is  most  rational  in 
its  expression? 

It  is  not  easy  to  answer  such  large  questions  as 
these  within  the  limits  of  a  single  lecture.  But  we 
can  at  least  trace  some  of  the  stages  in  this  double 
process  of  evolution. 


FREEDOM  AS  A  LEGAL  INSTITUTION     77 

It  is  a  characteristic  of  all  early  communities  that 
each  man  was  born  into  a  certain  set  of  rights 
and  duties  from  which  he  could  never  free  himself. 
This  system  of  status,  or  caste,  is  a  survival  of  the 
old  tribal  organization  when  law  and  morals  were 
undistinguished;  when  social  arrangements  existed 
by  the  authority  of  the  gods ;  and  when  any  attempt 
to  disturb  them  was  an  act  of  impiety  or  sacrilege. 
When  law  was  first  separated  from  morals,  many  of 
the  arrangements  and  the  penalties  remained  for 
the  moment  unchanged. 

But  it  was  not  long  before  an  alteration  in  the 
character  of  the  legal  penalties  began  to  take  place. 
Where  one  man  had  wronged  another  unintention- 
ally, it  became  possible  not  only  to  inflict  punish- 
ment, but  to  exact  compensation.  Instead  of  the 
fine  which  was  exacted  for  an  offence  against  public 
order,  the  community  could  compel  the  payment  of 
damages  to  make  good  the  loss  to  the  person  in- 
jured. Even  where  the  wrong  was  intentional,  the 
idea  of  compensation  could  enter  into  the  penalty 
or  supplement  it.  When  once  the  legal  authorities 
grasped  this  possibility  of  using  a  civil  remedy  in- 
stead of  a  criminal  one,  it  became  possible  to  allow 
to  any  man  who  could  pay  substantial  damages  a 
degree  of  personal  liberty  which  was  not  possible 
under  a  system  where  every  infraction  of  others' 


78  FREEDOM  AND  RESPONSIBILITY 

rights,  even  when  accidental,  must  be  treated  as  a 
crime  and  visited  with  criminal  penalties  to  prevent 
its  recurrence. 

From  the  development  of  civil  damages  it  was 
but  a  short  step  to  the  system  of  contracts.  The 
essential  idea  of  a  contract  is  that  one  or  both  of  the 
parties  thereto  agrees  to  perform  a  certain  service 
at  a  future  time.  The  obligation  which  a  man 
assumes  in  a  contract  is  voluntary  until  he  has  made 
the  agreement.  After  he  has  made  the  agreement 
society  will  compel  him  to  pay  damages  for  its 
breach,  just  as  it  would  compel  him  to  pay  damages 
for  the  breach  of  any  of  the  other  rights  of  his 
fellow  citizens.  It  is  therefore,  in  its  very  essence, 
a  combination  of  freedom  and  responsibility.  It 
is  a  means  which  the  community  can  adopt  for 
getting  work  done  by  the  voluntary  assumption  of 
obligations  on  the  part  of  its  members.  These  ob- 
ligations they  can  be  compelled  to  perform,  or  at 
the  very  worst  they  can  be  compelled  to  furnish 
compensation  to  the  other  party  for  their  non-per- 
formance. Among  the  many  brilliant  contributions 
of  the  Roman  lawyers  to  the  progress  of  civiliza- 
tion, there  was  probably  none  so  wide-reaching  as 
their  development  of  the  theory  of  contracts.  For 
wherever  this  theory  was  applied  it  taught  people 
that  the  exercise  of  freedom  involved  the  assump- 


FREEDOM  AS  A  LEGAL  INSTITUTION      79 

tion  of  responsibility,  and  could  be  safely  combined 
with  it. 

This  lesson  was  not  easy  to  learn,  and  the  Roman 
lawyers  did  not  succeed  in  teaching  it  to  the  civ- 
ilized world  for  all  time.  The  irruption  of  the 
barbarians  into  Europe  brought  with  it,  under  the 
feudal  system,  a  nearly  complete  return  to  the  old 
theory  of  status  or  congenital  obligation.  But  with 
the  close  of  the  feudal  period  the  ideas  of  the  Roman 
law  were  taken  up  and  widely  expanded.  The 
power  of  making  a  contract  under  the  old  Roman 
empire  had  been  practically,  though  not  theoret- 
ically, limited  to  a  few  men ;  to  those  men,  namely, 
who  could  furnish  security  for  the  performance  of 
their  part  of  the  obligation.  A  could  not  give  B  a 
present  consideration  for  the  sake  of  B's  future 
promise,  unless  he  was  sure  that  B  could  either 
perform  his  promise  or  could  compensate  A  for  the 
failure.  The  mere  criminal  remedy  of  putting  B  in 
prison  would  not  protect  A,  nor  offer  him  sufficient 
inducement  for  furnishing  B  with  that  considera- 
tion which  was  the  basis  of  the  contract.  Under  the 
economic  conditions  which  prevailed  in  the  Roman 
world,  the  power  of  making  contracts  belonged 
chiefly  to  freemen,  and  indeed  to  that  minority  of 
the  freemen  who  enjoyed  the  benefits  of  slavery, — 
the  planters  of  Rome,  as  distinct  from  the  poor 


80  FREEDOM  AND  RESPONSIBILITY 

whites.  At  the  close  of  the  Middle  Ages,  however, 
the  reintroduetion  of  the  idea  of  contractual  obliga- 
tion as  a  basis  for  social  order  was  accompanied  by 
a  system  of  emancipation — complete  in  some  coun- 
tries, partial  in  others — which  gave  the  laborer  a 
certain  amount  of  property  right  in  the  product  of 
his  toil.  This  substitution  of  industrial  for  military 
tenure  put  a  much  larger  number  of  people  in  a 
position  to  furnish  security  for  the  performance  of 
contracts.  It  enabled  the  people  as  a  whole,  instead 
of  a  privileged  few,  to  enjoy  the  system  of  education 
in  responsibility  which  marks  the  growth  of  con- 
tract law. 

For  our  modern  law  of  contract  is  a  most  valuable 
system  of  moral  education,  operating  alike  upon 
lawyers  and  upon  laymen,  and  enabling  us  to  make 
progress  both  in  our  judicial  ethics  and  in  our  gen- 
eral tone  of  public  morality.  The  whole  English 
commercial  law  of  the  seventeenth  and  eighteenth 
centuries,  with  its  distinctions,  sometimes  fine  drawn 
but  always  well  drawn,  in  matters  like  agency  or 
warranty,  competence  or  negligence,  involves  a 
systematic  enforcement  of  responsibility  under  the 
forms  of  freedom.  If  we  wish  to  see  what  this  legal 
development  has  accomplished  in  the  way  of  intro- 
ducing responsibility,  we  have  only  to  contrast  our 
standards  of  practice  and  ethics  in  those  lines  where 


FREEDOM  AS  A  LEGAL  INSTITUTION      81 

commercia]  law  has  been  developing  for  centuries 
with  those  where  its  application  is  comparatively 
new.  If  I  sell  a  cow  on  the  basis  of  certain  repre- 
sentations, and  these  representations  prove  to  be 
false,  the  law  holds  me  to  an  implied  contract  of 
warranty,  even  if  I  have  explicitly  disclaimed  any 
intention  to  warrant  the  animal.  If  I  sell  a  railroad 
under  similar  circumstances  the  law  offers  the  suf- 
ferer no  corresponding  remedy;  and  no  small  sec- 
tion of  the  public  applauds  the  seller  for  the 
shrewdness  which  he  has  displayed  in  the  trans- 
action. If  I  use  an  individual  position  of  trust  to 
enrich  myself  at  the  expense  of  others,  the  law  will 
compel  me  to  make  restitution,  even  where  criminal 
intent  was  absent.  But  if  I  profit  by  similar  errors 
in  the  management  of  a  corporate  trust,  the  diffi- 
culty of  bringing  the  responsibility  home  is  very 
great  indeed. 

These  facts  and  the  evils  connected  with  them  are 
notorious.  Any  improvement  in  these  matters 
which  shall  bring  the  conduct  of  associations — 
whether  public  or  private,  of  capitalists  or  of  labor- 
ers— up  to  the  same  moral  level  which  characterizes 
the  conduct  of  individuals,  involves  a  combined 
legal  and  moral  process.  The  same  conception  of 
the  duty  of  agents  and  trustees  which  now  prevails 
in  the  dealings  of  individuals  with  one  another,  and 


82  FREEDOM  AND  RESPONSIBILITY 

constitutes  part  of  our  standards  of  morality  and 
gentlemanly  honor,  must  be  adopted  by  the  courts 
and  accepted  by  the  people  in  dealing  with  the 
affairs  of  corporations.  There  has  already  been  a 
decided  movement  in  that  direction.  The  standards 
of  corporation  law  and  morals  were  better  in  1880 
than  they  were  in  1860.  They  were  better  in  1900 
than  they  were  in  1880.  Much,  however,  remains 
to  be  accomplished  before  they  reach  a  satisfactory 
stage.  Until  this  process  is  complete  we  shall  wit- 
ness alternations  between  reckless  license  of  cor- 
porate management  on  the  one  hand  and  socialistic 
agitation  for  control  on  the  other.  The  problem 
will  not  be  solved  until,  by  the  gradual  acceptance 
of  responsibility,  we  have  achieved  that  combina- 
tion of  liberty  and  self-control  which  is  the  basis  of 
freedom  as  a  legal  institution.  When  corporate 
agents  assume  the  same  kind  of  moral  duties  and 
responsibilities  that  are  now  assumed  by  private 
individuals,  then — and  not  till  then — may  we  ex- 
pect that  they  will  have  the  same  immunity  from 
legislative  interference. 

It  is  the  ideal  of  a  free  community  to  give  liberty 
wherever  people  are  sufficiently  advanced  to  use 
it  in  ways  which  shall  benefit  the  public,  instead  of 
in  ways  which  will  promote  their  own  pleasure  at 
the  public  expepse.    And  it  has  been  the  practice 


FREEDOM  AS  A  LEGAL  INSTITUTION     83 

of  the  most  successful  communities  to  go  farther 
than  this,  and  give  freedom  somewhat  in  advance 
of  this  ethical  development,  wherever,  by  suits  for 
damages  or  enforcement  of  contractual  obligations, 
the  losses  arising  from  misuse  of  freedom  could  be 
so  far  brought  home  to  the  individual  offender  as  to 
prevent  him  from  repeating  his  error  at  public  ex- 
pense. Liberty  is  directly  advantageous  wherever 
the  ethical  development  of  the  community  fits  peo- 
ple for  its  use;  it  is  likely  to  prove  indirectly  ad- 
vantageous wherever  there  is  a  fair  promise  that 
they  can  be  taught  to  improve  their  ethical  stand- 
ards in  the  immediate  future. 

This  statement  of  the  limits  of  civil  liberty  differs 
somewhat,  in  theory  at  least,  from  that  of  John 
Stuart  Mill.  Mill  makes  a  fundamental  distinction 
between  self-regarding  actions,  which  affect  almost 
exclusively  the  individual  immediately  concerned, 
and  actions  which  are  not  primarily  or  chiefly  self- 
regarding,  so  that  they  affect  the  community  more 
than  they  do  the  individual.  In  the  former  case, 
he  says,  we  can  allow  the  very  widest  degree  of 
liberty;  in  the  latter  case  we  must  have  a  much 
larger  degree  of  restriction.  With  all  deference  to 
the  eminent  writers  by  whom  this  theory  has  been 
upheld,  I  cannot  think  that  it  is  possible  thus  to  set 
apart    any    group    of    actions    as    self-regarding. 


84  FREEDOM  AND  RESPONSIBILITY 

Every  kind  of  act  may  affect  others  overwhelm- 
ingly. The  utterance  of  a  thought  would  be  con- 
sidered a  self-regarding  action;  the  picking  of  a 
pocket  an  action  which  affected  others.  Yet  it  will 
not  infrequently  happen  that  one  man  by  express- 
ing his  real  thoughts  to  another  may  do  him  and 
do  the  community  a  more  irreparable  harm  than 
if  he  had  picked  the  other  man 's  pocket.  The  ques- 
tion of  the  degree  of  liberty  which  can  be  allowed  in 
any  given  field  turns  more  upon  the  character  of 
the  actors  than  upon  the  character  of  the  acts.  The 
system  of  legal  arrangements  for  the  promotion  of 
liberty  attempts  not  so  much  to  divide  men 's  actions 
into  different  classes,  in  one  of  which  liberty  can  be 
allowed  and  in  the  other  of  which  it  cannot  be 
allowed,  as  to  take  account  of  men's  characteristics 
in  such  a  way  as  to  leave  the  people  free  or  to  edu- 
cate them  for  freedom  in  those  fields  where  such 
freedom  or  education  is  possible. 

The  difficulty  of  applying  Mill's  classification  is 
seen  when  we  look  at  the  history  of  freedom  of 
thought.  If  there  is  one  form  of  activity  which 
more  than  all  others  Mill  and  his  school  would  treat 
as  self -regarding,  it  is  the  activity  of  a  man's  brain. 
Yet  freedom  of  thought  has  been  of  slower  growth 
than  freedom  of  action;  and  even  to  the  present 


FREEDOM  AS  A  LEGAL  INSTITUTION     85 

day  it  presents  harder  problems  for  the  theorist 
to  deal  with. 

In  the  earliest  stages  of  social  development,  free 
thought  was  obviously  not  a  self -regarding  action. 
It  was  not  tolerated,  and  it  could  not  be ;  because  it 
was  the  very  thing  which  most  offended  the  gods, 
and  thus  brought  destruction  upon  every  member 
of  the  tribe.  It  was  worse  than  illegal  conduct. 
For  conduct  which  violated  the  code  of  tribal  cus- 
tom might  be  a  mere  accident — in  which  case  the 
gods  would  perhaps  be  satisfied  with  some  expiation 
short  of  the  death  of  the  offender.  But  a  thought 
which  was  at  variance  with  the  theory  on  which 
these  tribal  customs  were  supported  was  not  acci- 
dental. It  was  a  bold  and  deliberate  defiance  of  the 
authority  of  the  gods — an  act  of  sacrilege  of  the 
worst  form.  The  effect  of  this  view  is  manifested 
in  the  terrible  frenzy  and  cruelty  which,  down  to 
comparatively  modern  times,  has  characterized  re- 
ligious persecution. 

But  the  very  observances  which  were  adopted  as 
a  means  for  securing  the  authority  of  the  priests 
over  the  tribe  paved  the  way  for  occasional  defiance 
of  this  authority.  The  fastings  and  ceremonies 
which  strengthened  the  influence  of  the  priesthood 
provided  also  a  receptive  audience   for  persons, 


86  FREEDOM  AND  RESPONSIBILITY 

within  that  priesthood  or  outside  of  it,  who  might 
believe  themselves  possessed  of  new  revelations  to 
communicate.  If  a  man  was  placed  in  the  condition 
where  he  would  see  the  spirit  of  his  grandfather,  he 
was  likely  to  see  some  other  things  not  dreamed  nor 
intended  by  those  who  brought  him  to  this  state. 
A  time  of  frenzy  gave  every  opportunity  for  an 
innovator  to  say  things  which  at  soberer  times  peo- 
ple would  not  have  dared  to  listen  to,  and  which 
he  himself  might  not  have  dared  to  think.*  A  man 
of  oratorical  temperament,  who  at  other  seasons 
would  have  been  stoned  to  death  as  a  blasphemer, 
might  now  be  welcomed  as  a  prophet.  This  was  the 
beginning  of  liberty  of  teaching.  Where  the  priests 
represented  scientific  conservatism,  the  prophets 
represented  scientific  progress.  It  is  needless  to  say 
that  there  was  none  too  much  love  between  priests 
and  prophets.  The  former  would  as  a  rule  will- 
ingly have  exterminated  the  latter.  But  over  and 
over  again  it  is  related  that  "they  feared  the  peo- 
ple. "  The  new  word  which  the  prophet  had  uttered 
had  received  such  a  hearing  that  there  was  greater 

*  This  was  the  one  thing  which  gave  progressive  men  and 
progressive  views  a  fair  chance.  It  was  probably  on  this  prin- 
ciple that  tlie  ancient  Macedonians  based  their  custom,  which 
so  impressed  Herodotus,  of  never  taking  any  important  action 
till  they  had  discussed  it  twice — once  when  they  were  sober  and 
once  when  they  were  drunk. 


FREEDOM  AS  A  LEGAL  INSTITUTION    87 

danger  to  the  priestly  authority  in  its  suppression 
than  in  the  unwilling  toleration  of  its  con- 
tinuance. 

But  how  should  this  toleration  be  justified  with- 
out weakening  the  whole  authority  of  the  law  ?  The 
case  could  not  be  met  by  a  system  of  sacrificial  ex- 
piation. In  the  first  place,  if  the  progressive  thought 
of  the  prophets  was  an  offence,  no  expiation  would 
have  been  sufficient  to  atone  for  it;  and  even  if  it 
had  been  sufficient,  the  prophets  would  have  been 
the  last  ones  to  cooperate  in  making  such  atonement. 
The  very  essence  of  their  claim,  which  gave  them 
their  hold  over  the  people,  was  that  they  were  pos- 
sessed of  a  divine  revelation  which  it  was  a  merit 
and  not  a  sin  to  preach.  Under  these  circumstances 
the  priests  adopted  the  simple  method  of  treating 
the  prophet  as  legally  irresponsible.  They  said,  in 
short,  that  he  was  crazy ;  and  this  explanation  was 
quite  readily  accepted.  Even  at  the  present  day, 
the  majority  of  hard-headed  business  men  believe 
that  poets,  professors,  and  other  classes  of  idealists 
have  a  bee  in  their  bonnets ;  and  if  this  is  true  now, 
when  men  of  these  classes  are  held  amenable  to  the 
law  of  the  land,  much  more  necessarily  was  it  the 
case  when  they  were  openly  proclaimed  as  madmen 
and  encouraged,  if  not  compelled,  to  adapt  their 
conduct  to  the  character  thus  thrust  upon  them. 


88  FREEDOM  AND  RESPONSIBILITY 

It  may  be  remarked  in  passing  that  this  ancient 
conception  of  insanity  was  not  so  totally  different 
from  the  modern  one,  regarded  from  the  legal  side. 
We  have  a  theory  that  the  question  of  insanity  in 
murder  trials  is  proved  by  medical  examination. 
But  in  a  very  large  number  of  cases  the  diagnosis  is 
based  on  the  circumstances  of  the  murder  itself. 
We  use  the  term  insanity  as  a  convenient  excuse  for 
men  whose  acts  and  feelings  are  so  remote  from  the 
usual  run  of  human  experience  as  to  lead  the  jury 
to  think  that  the  authority  of  the  law  will  be  better 
upheld  by  excusing  them  than  by  hanging  them. 
The  difference  between  ancient  and  modern  con- 
ceptions lies  rather  in  the  degree  of  liberty  which 
we  propose  to  allow  the  insane  man  afterward.  The 
ancient  priesthood  held  that  if  a  man  was  insane 
and  could  not  be  punished  he  was  therefore  free; 
the  modern  court  holds  that  if  a  man  is  insane  and 
cannot  be  punished  his  freedom  must  be  restricted 
on  that  account,  in  order  to  prevent  a  recurrence  of 
the  dangerous  act. 

Free  thought  based  on  the  claim  of  insanity  was 
better  than  no  free  thought  at  all.  But  it  gave  an 
unfortunate  sort  of  monopoly  of  the  privileges  of 
liberty  to  those  who  were  least  competent  to  use 
them  wisely.  If  a  leader  arrived  who  was  obvious- 
ly not  insane,  but  clear-headed  and  of  sound  judg- 


FREEDOM  AS  A  LEGAL  INSTITUTION     89 

ment,  who  did  not  take  the  guise  of  a  madman  but 
accepted  the  obligations  and  duties  of  daily  life,  the 
religious  system  provided  no  place  for  him.  The 
very  qualities  which  distinguished  Jesus  of  Naza- 
reth above  the  prophets  who  had  preceded  him  as  a 
religious  reformer  stood  in  the  way  of  his  accept- 
ance among  the  Jewish  authorities  of  his  genera- 
tion. People  began  by  reviling  him ;  they  ended  by 
crucifying  him.  "John  came  neither  eating  nor 
drinking,  and  ye  say,  He  hath  a  devil.  The  Son  of 
Man  came  eating  and  drinking,  and  ye  say.  Behold 
a  glutton  and  a  winebibber,  a  friend  of  publicans 
and  sinners. ' '  Over  and  over  again  among  the  peo- 
ples of  the  East  the  dangers  which  arose  from  hav- 
ing leaders  of  thought  more  or  less  insane,  or  at  any 
rate  compelling  them  to  pretend  to  be  more  or  less 
insane,  have  manifested  themselves,  and  still  mani- 
fest themselves  down  to  the  present  day.  The  sys- 
tem causes  the  Oriental  armies  to  be  commanded  by 
fanatics,  capable  at  times  of  rousing  their  follow- 
ers to  violent  acts,  but  incapable  of  sustained  judg- 
ment in  directing  the  employment  of  means  toward 
a  practical  end.  It  causes  Oriental  society  to  be 
burdened  with  vast  numbers  of  half  insane  and 
wholly  irresponsible  mendicants — religious  zealots, 
who  have  something  of  the  external  characteristics 
of  prophets,  but  very  little  of  their  internal  char- 


90  FREEDOM  AND  RESPONSIBILITY 

acter.  The  system  prevents  moral  stagnation,  but 
at  the  more  or  less  habitual  sacrifice  of  public  order, 
public  economy,  and  public  security. 

When  our  religious  thinkers  had  advanced  far 
enough  for  us  to  regard  sin  as  a  personal  offence, 
which  brought  down  the  wrath  of  God  upon  the 
individual,  rather  than  as  a  collective  offence, 
which  caused  God  to  punish  the  whole  tribe  without 
discrimination,  the  way  was  open  for  tolerating  free 
thought  among  men  who  were  not  insane.  Even 
those  who  regarded  progressive  ideas  as  acts  of  im- 
morality on  the  part  of  the  thinker  did  not  find 
themselves  compelled  to  kill  him  in  order  to  prevent 
the  penalty  of  his  impiety  from  being  visited  upon 
themselves.  The  progressive  thinker  could  be  treat- 
ed as  one  who  did  not  jeopardize  the  safety  of  all 
his  associates  by  his  irreligious  utterances.  Per- 
haps it  might  prove  that  his  teaching  was  not  so 
wholly  wrong  after  all.  The  authorities  might 
safely  say  concerning  the  innovators,  as  Gamaliel 
said  in  the  trial  of  the  Apostles:  "Refrain  from 
these  men  and  let  them  alone :  for  if  this  counsel  or 
this  work  be  of  men  it  will  come  to  nought ;  but  if 
it  be  of  God  ye  cannot  overthrow  it :  lest  haply  ye 
be  found  even  to  fight  against  God."  Where  the 
separation  of  legal  and  moral  authority  had  become 
at  all  complete — where,  in  other  words,  a  change  of 


FREEDOM  AS  A  LEGAL  INSTITUTION     91 

mythology  did  not  weaken  public  security — ^this 
was  the  logical  and  natural  ground  to  take. 

But  even  when  we  have  accepted  this  theoretical 
view  of  the  case,  we  may  fall  far  short  of  the  actual 
toleration  of  free  thought.  We  may  admit  that  the 
impiety  of  an  individual  does  not  in  itself  constitute 
a  danger  to  public  security,  and  that  the  holding  of 
a  wrong  opinion  constitutes  in  itself  no  menace  to 
social  order,  and  nevertheless  be  extremely  in- 
tolerant of  these  opinions  in  practice — either  be- 
cause we  think  that  the  holding  of  opinions  which 
we  consider  wrong  will  harm  the  individual  himselff 
or  because  we  think  that  the  inevitable  expression 
of  those  opinions  will  harm  the  community. 

In  early  stages  of  society,  or  with  undevel- 
oped systems  of  legal  procedure,  the  first  of  these 
ideas  is  the  dominant  one.  Where  law  is  imper- 
fectly separated  from  morals,  and  where  the  powers 
of  church  and  state  are  closely  intermingled,  it  is 
inevitable  that  this  should  be  the  case.  If  a  man  puts 
himself  in  danger  of  eternal  punishment  by  a  cer- 
tain line  of  thought,  it  is  not  an  evidence  of  breadth 
of  mind,  but  an  evidence  of  scandalous  indifference 
to  his  fate,  to  leave  him  to  pursue  that  line  of 
thought  undisturbed.  Galileo  was  forbidden  to 
teach  that  the  earth  revolved  around  the  sun  be- 
cause it  was  believed  to  be  wrong  for  him  to  think 


92  FREEDOM  AND  RESPONSIBILITY 

that  the  earth  revolved  around  the  sun.  Socrates 
was  condemned  to  lose  his  life,  not  so  much  because 
he  kept  a  school  in  which  the  youth  were  systemat- 
ically instructed — ^though  this  played  a  part  in  the 
proceedings — but  because  the  daemonism  which  he 
was  supposed  to  teach  savored  of  impiety  to  those 
who  had  been  brought  up  with  conservative  re- 
ligious ideas.  There  are  always  misguided  friends 
of  the  free  thinker  who  are  so  concerned  about  his 
future  welfare  that  they  cannot  let  him  subject  him- 
self to  the  penalties  of  his  impiety  without  doing 
their  utmost  to  interfere — friends  who  will  impose 
legal  restraints  upon  him  if  they  can,  and  failing 
this,  will  use  to  the  utmost  extent  the  less  tangible 
but  no  less  effective  restraints  of  personal  entreaty 
or  of  public  disapproval.  Those  of  us  who  claim  to 
be  most  enlightened  in  this  matter  of  toleration  of 
opinion  cannot  rid  ourselves  of  the  habits  of  intoler- 
ance inherited  from  our  ancestors.  If  we  are  in- 
clined for  a  moment  to  doubt  this  last  proposition, 
we  have  only  to  consider  how  much  of  our  own  time 
has  been  spent  in  indignation  against  other  people 
for  holding  views  which  were  different  from  our 
own,  even  in  cases  where  there  was  no  particular 
chance  that  the  views  of  either  of  us  would  have 
any  influence  on  the  external  acts  of  the  other. 
Neither  philosophers  nor  scientists  are  exempt  from 


FREEDOM  AS  A  LEGAL  INSTITUTION     93 

this  difficulty.  The  odium  theologicum  extends  to 
every  school  of  thought.  Professor  W.  K.  Clifford 
argues  that  the  right  of  private  judgment  is  an 
absolute  one,  with  an  almost  vituperative  scorn  of 
those  who  exercise  private  judgment  to  the  extent 
of  differing  with  him  in  this  opinion.  The  diffi- 
culty of  learning  to  mind  our  own  business  in  the 
matter  of  interference  with  other  people 's  thoughts 
is  so  great,  even  where  we  find  actual  tolerance  of 
differences  of  religious  or  scientific  opinion,  that  we 
are  only  too  apt  to  discover  that  this  is  the  result 
of  apathy  rather  than  of  intelligence. 

But  as  the  conception  of  law  has  become  more 
and  more  clearly  defined,  and  the  line  between 
church  and  state  more  distinct,  there  has  been  an 
increasing  reluctance  on  the  part  of  the  government 
to  lend  its  aid  in  suppressing  opinions  which,  how- 
ever dangerous  they  may  be  to  the  souls  of  those 
who  hold  them,  do  not  constitute  an  immediate  men- 
ace to  public  security  and  social  order.  And  slowly 
but  surely  this  increasing  conservatism  in  the  use  of 
legal  penalties  leads  to  a  corresponding  conserva- 
tism in  the  administration  of  theological  penal- 
ties. Where  the  law  will  hang  a  man  for  every 
affront  to  civil  authority,  real  or  supposed,  the 
theologians  have  no  difficulty  in  persuading  people 
that  the  gods  will  punish  all  transgressors  in  an 


94  FREEDOM  AND  RESPONSIBILITY 

equally  bloodthirsty  spirit.  There  is  in  every  tribe 
and  every  nation  an  almost  necessary  correspond- 
ence between  its  moral  system  and  its  legal  system. 
The  character  of  its  chiefs  will  be  reflected  in  the 
character  of  its  gods,  and  vice  versa.  If  the  system 
of  legal  penalties  is  vindictive  and  arbitrary,  the 
system  of  spiritual  penalties  will  be  vindictive  and 
arbitrary  also.  If  the  system  of  legal  penalties  is 
rational,  judging  the  offender  by  his  intent  and  giv- 
ing him  fair  opportunity  to  argue  his  case,  this 
habit  will  be  reflected  in  the  theological  arguments 
and  the  conception  of  the  divine  penalty.  In  the 
Jokes  of  the  Lacedaemonians,  Plutarch — if  it  really 
be  Plutarch  who  made  this  curious  collection  of 
ancient  wit — ^tells  how  a  Lacedaemonian  remarked, 
as  they  passed  the  contribution  box,  "I  have  no 
use  for  gods  that  are  poorer  than  I  am. ' '  No  nation 
can  accept  a  morality  on  the  part  of  its  spiritual 
rulers  inferior  to  that  which  characterizes  its  earth- 
ly ones.  Rational  law  carried  with  it  the  develop- 
ment of  rational  theology.  It  relieved  us  from  the 
fear  that  the  good  man  would  be  eternally  punished 
for  a  mistake  of  doctrine.  It  made  the  eradication 
of  those  mistakes  no  longer  a  duty  which  a  man 
owed  to  his  friends,  but  a  matter  of  private  judg- 
ment, to  be  decided  on  questions  of  expediency.  It 
deprived  our  habits  of  intolerance  of  the  justifica- 


FREEDOM  AS  A  LEGAL  INSTITUTION     95 

tion  which  they  had  when  they  were  part  of  a  legal 
and  theological  system,  and  left  them  standing  iso- 
lated in  the  modern  world  as  an  anomalous  survival 
of  ancient  prejudices. 

But  even  under  the  most  advanced  legal  systems 
and  the  most  logical  methods  of  thought,  it  is  im- 
possible to  make  toleration  of  differences  of  opinion 
as  absolute  a  right  as  some  people  assume.  For 
freedom  to  hold  an  opinion  is  meaningless  unless  it 
carries  with  it  freedom  to  express  the  opinion.  Na- 
tions with  advanced  legal  systems  very  rarely  inter- 
fere with  opinion  in  its  former  aspect.  In  the  latter 
aspect  they  frequently  have  occasion  to  restrict  or 
suppress  it.  The  Roman  law  persecuted  the  Chris- 
tians, not  so  much  for  their  religious  opinions  as 
for  their  habit  of  holding  irresponsible  public 
assemblies.  This  was  a  thing  of  which  the  Ro- 
man authorities  were  always  jealous;  and  they 
were  especially  jealous  of  these  assemblies  of  the 
Christians  because  the  theories  of  divine  sover- 
eignty therein  set  forth  often  seemed  to  menace 
the  legal  right  of  the  emperor.  The  persecution,  or 
alleged  persecution,  of  scientific  men  in  some  of 
our  modern  communities  is  not,  in  general,  an  at- 
tempt to  prevent  them  from  holding  such  opinions 
as  they  please  concerning  the  evolution  of  species, 
or  the  proper  material  for  a  dollar,  or  the  physio- 


96  FREEDOM  AND  RESPONSIBILITY 

logical  effects  of  alcohol,  but  to  prevent  them  from 
making  use  of  official  position  to  teach  these  opin- 
ions, and  drawing  a  salary  for  so  doing. 

All  these  instances  show  how  hard  it  is  to  sep- 
arate the  question  of  the  right  of  free  thought  from 
the  question  of  illegal  activity,  or  even  to  be  quite 
sure  which  of  these  things  is  being  infringed  and 
restricted.  If  a  man  is  deprived  of  a  teaching  posi- 
tion because  he  advocates  the  Darwinian  theory  or 
the  silver  standard,  his  friends  will  regard  it  as  an 
attack  upon  liberty  of  thought;  his  enemies  will 
consider  it  a  protection  of  public  morality.  The 
trustees  who  remove  such  an  officer  will  probably 
make  the  mistake  of  under-estimating  the  possi- 
bility of  good  which  results  from  freedom,  but  they 
will  be  right  in  considering  the  act  of  teaching  as 
being  not  a  self -regarding  one  but  one  whose  good 
or  bad  use  involves  good  or  evil  to  others  besides 
the  teacher,  and  as  regarding  themselves  as  having 
special  duties  of  interference  if  evil  is  done  in  the 
exercise  of  this  function.  The  remedy  for  this  state 
of  things  is  not  to  be  found  by  trying  to  draw  more 
clearly  the  line  between  actions  which  concern  the 
teacher  himself  and  actions  which  concern  others. 
This  is  an  impossibility.  Things  which  might  be 
harmless  if  uttered  by  a  teacher  of  one  subject  to 
pupils  of  advanced  age  might  be  utterly  demoral- 


FREEDOM  AS  A  LEGAL  INSTITUTION     97 

izing  if  set  forth  by  a  teacher  of  another  subject 
to  pupils  of  another  stage  of  training.  Nor  can 
we  attempt  to  mitigate  the  evil  by  changing  the 
character  of  the  board  of  trustees.  The  particular 
form  of  the  board  of  control  makes  a  difference 
with  the  direction  in  which  the  restraint  is  exer- 
cised, rather  than  with  the  amount  of  such  re- 
straint. The  trustees  of  an  ecclesiastical  college 
concern  themselves  chiefly  with  religious  opinions, 
those  of  a  state  college  with  political  opinions,  those 
of  a  private  foundation  with  economic  opinions; 
but  the  actual  degree  of  liberty  allowed  depends 
upon  the  stage  of  intellectual  development  which 
has  been  reached  by  the  teacher  and  by  the  com- 
munity about  him.  The  amount  of  freedom  which 
can  be  tolerated  depends  upon  the  responsibility 
of  the  speaker,  and  perhaps  to  a  yet  greater  degree 
upon  the  responsibility  of  the  community  in  making 
use  of  the  doctrines  which  he  preaches. 

There  was  a  time  when  a  considerable  part  of  the 
anarchists  of  America  advocated  doctrines  of  forci- 
ble resistance  to  authority  which  were  not  consonant 
with  the  American  Constitution.  For  many  years 
they  were  allowed  to  do  this  without  molestation. 
It  was  supposed  that  the  utterance  of  these  senti- 
ments did  little  harm — that  they  were  mere  talk, 
and  nothing  more.    But  when  the  people  who  heard 


98  FREEDOM  AND  RESPONSIBILITY 

these  speeches  began  to  murder  officials,  the  case 
was  different.  The  public  expression  of  certain 
views  was  summarily  stopped  by  treating  the  men 
who  expressed  them  as  guilty  of  the  crime  of  in- 
citement to  murder.  It  was  in  vain  for  these  men 
to  plead,  as  they  perhaps  could  conscientiously  do, 
that  they  were  simply  uttering  theories  about  the 
government,  and  that  a  man  had  a  right  to  utter 
any  theory  he  pleased.  This  sentiment  would  hold 
good  as  long  as  the  audience  was  sufficiently  ra- 
tional not  to  try  to  put  the  theories  in  practice. 
When  this  condition  ceased  to  exist,  the  possibility 
of  freedom  was  diminished. 

This  case  of  the  anarchists  is  important  as  illus- 
trating quite  clearly  the  conditions  which  limit  the 
exercise  of  toleration.  Speaking  broadly,  there  is 
no  question  that  toleration  is  a  good  thing.  The 
argument  of  Carlyle,  that  nine  men  out  of  ten  will 
judge  badly,  and  that  they  should  therefore  follow 
a  leader  who  can  judge  well,  instead  of  pursuing 
independent  courses  of  their  own,  proves  less  than 
it  appears  to;  for  the  mistakes  that  the  nine  men 
make  serve  as  a  warning  to  prevent  others  from 
following  their  example,  while  the  good  judgment 
of  the  tenth  man  is  a  permanent  contribution  to 
progress.  As  Morley  well  says,  the  system  of  tol- 
eration lays  down  the  main  condition  of  finding 


FREEDOM  AS  A  LEGAL  INSTITUTION     99 

your  hero ;  to  leave  all  ways  open  to  him,  because 
no  man  knows  by  which  way  he  should  come.  But 
there  is  this  important  truth  to  be  emphasized  on  the 
other  side:  that  the  amount  of  private  judgment 
which  the  members  of  a  nation  can  advantageously 
or  even  safely  exercise  depends  upon  their  own 
moral  character.  That  degree  of  freedom  which  in 
one  stage  of  society,  or  among  men  of  one  kind, 
serves  as  a  means  to  progress,  would  in  another 
stage  and  with  other  men  loosen  all  foundations 
of  social  cohesion  and  constitute  a  relapse  into 
anarchy. 

To  a  certain  extent,  every  one  recognizes  this 
truth.  Every  one  sees  that  discussion  with  young 
children  or  with  immature  races  must  be  handled 
in  a  different  fashion  from  that  which  would  be 
permissible  with  men  of  more  advanced  age  or 
civilization.  It  is  the  central  idea  of  Bagehot's 
Physics  and  Politics  that  institutions  and  habits  of 
thought  had  to  be  so  arranged  as  to  produce  cohe- 
sion before  there  was  any  room  for  liberty.  What 
Bagehot  perhaps  inadequately  realizes,  and  what 
many  other  political  writers  far  more  conspicu- 
ously fail  to  realize,  is  that  this  need  of  maintaining 
social  cohesion  is  a  perpetual  one.  It  is  not  a  thing 
which  has  been  established  once  for  all  in  the  course 
of  prehistoric  or  early  historic  ages,  and  may  now 


100        FREEDOM  AND  RESPONSIBILITY 

be  left  to  take  care  of  itself.  We  have  not  by  the 
labors  of  our  ancestors  attained  a  degree  of  disci- 
pline which  makes  society  permanently  safe  from 
disorganization,  Athens  was  a  well  established  and 
highly  organized  state ;  yet  the  teachings  of  Socrates 
at  Athens  were  followed  by  a  Macedonian  conquest. 
The  Italian  republics  had  well  developed  traditions 
and  were  under  the  authority  of  a  powerful  church ; 
but  the  revival  of  learning  in  Italy  was  followed, 
at  no  very  long  interval,  by  a  decadence  in  all  that 
had  made  Italy  great.  The  nineteenth  century  has 
witnessed  a  third  experiment  in  introducing  simi- 
lar theories  of  self-interest  and  private  judgment. 
This  experiment  is  made  under  more  favorable  con- 
ditions than  its  predecessors,  because  the  greater 
distribution  of  property,  the  wider  understanding 
of  contractual  obligations,  and  the  habits  taught  by 
the  Protestant  churches  of  exercising  private  judg- 
ment on  matters  outside  the  domain  of  selfish  in- 
terest have  increased  our  power  of  using  the  freest 
thought  without  interfering  with  that  discipline 
which  is  necessary  to  the  work  of  civilized  society. 
But  with  all  these  advantages,  it  is  going  to  be  a 
very  critical  experiment  to  teach  the  people  as  a 
body  that  they  are  free  to  think  what  they  like  and 
to  do  what  they  like.  Just  as  the  possibility  of  in- 
dustrial freedom  depends  upon  a  man's  readiness 


FREEDOM  AS  A  LEGAL  INSTITUTION    101 

to  assume  the  obligations  of  contract  and  his  re- 
sponsibility in  standing  up  to  them,  even  when  they 
work  to  his  own  inconvenience,  so  the  possibility  ot 
intellectual  liberty  is  dependent  upon  a  man's 
readiness  to  accept  the  responsibilities  involved  in 
the  use  of  private  judgment.  He  must  be  prepared 
to  exercise  that  judgment  on  a  Stoic  rather  than  an 
Epicurean  basis;  making  the  good  of  society  the 
standard  of  his  moral  conduct  even  when  this 
standard  shall  work  to  his  own  inconvenience  or 
hurt. 


FREEDOM    AS   A   FOUNDATION    OF   ETHICS 

The  liberals,  or  champions  of  liberty,  include  two 
somewhat  distinct  groups :  the  advocates  of  tolera- 
tion and  the  advocates  of  individualism.  The 
former  group  believes  in  allowing  people  a  large 
measure  of  liberty  in  managing  their  own  affairs, 
because  it  thinks  that  their  errors  as  well  as  their 
successes  will  teach  the  community  a  lesson  for  the 
future,  and  thus  contribute  indirectly  to  its  prog- 
ress. The  latter  group  believes  in  allowing  people 
a  still  larger  measure  of  liberty,  even  in  affairs 
which  are  not  distinctly  their  own,  because  it  thinks 
that  the  enlightened  selfishness  of  individuals  con- 
tributes directly  to  the  good  of  the  body  politic. 
The  former  would  allow  people  to  be  free  to  make 
their  own  mistakes,  in  the  belief  that  temporary 
error  is  self -corrective ;  the  latter  would  encourage 
people  to  pursue  their  own  interests,  in  the  be- 
lief that  enlightened  selfishness  promotes  the  com- 
mon interest.  The  former  group,  which  makes 
freedom  a  means  of  progress,  is  represented  by  men 
102 


FREEDOM  AS  A  FOUNDATION  OF  ETHICS  103 

like  Mill  and  Morley;  the  latter,  which  makes  it  a 
basis  of  ethics,  is  represented  by  men  like  Bastiat 
and  Clifford. 

Of  course  these  two  groups  are  not  wholly  sep- 
arate. There  are  a  great  many  men  who  believe 
both  in  toleration  and  in  self-interest,  and  can  with 
fairness  base  their  advocacy  of  liberty  on  either 
ground  which  may  prove  more  convenient.  But 
the  two  lines  of  argument,  though  often  confused, 
are  essentially  distinct.  Those  who  represent  in  the 
highest  degree  the  spirit  of  tolerance  are,  as  a  rule, 
somewhat  sceptical  about  the  operations  of  self- 
interest  ;  and  those  who  lay  most  stress  on  the  uni- 
versal beneficence  of  self-interest  are  apt  to  reduce 
their  belief  in  toleration  to  a  theory  rather  than 
a  practice. 

We  have  thus  far  been  considering  the  subject  of 
liberty  from  the  former  of  these  two  standpoints. 
We  have  shown  how  freedom  of  thought  and  action 
has  been  developed  by  civilized  communities,  under 
safeguards  which  look  toward  the  use  of  that  free- 
dom for  public  purposes.  Those  who  represent 
this  view  cherish  no  illusions  as  to  the  results  of  the 
freedom  they  advocate.  They  know  that  the  exer- 
cise of  freedom  means  mistakes;  ^'Es  irrt  der 
MenscJi,  so  lang  er  streht^' — Error  is  incident  to 
every  serious  effort  at  human  progress;  but  they 


104        FREEDOM  AND  RESPONSIBILITY 

see  that  these  mistakes  are  relatively  unimportant 
in  comparison  with  the  improvement  which  is  at- 
tained if  we  allow  them  and  prevented  if  we  do 
not  allow  them.  The  doctrine  of  liberty,  says  Mor- 
ley,  rests  on  the  belief  that  there  are  in  the  great 
seed  plot  of  human  nature  a  vast  number  of  unde- 
veloped germs,  not  tares  and  not  wheat,  whose 
properties  we  have  not  yet  had  a  full  chance  to 
ascertain ;  and  if  you  are  over-anxious  to  pluck  up 
the  tares  you  pluck  up  these  untried  possibilities  of 
human  excellence,  and  are  very  likely  to  injure  the 
growing  wheat  as  well.  Where  this  theory  of  tol- 
eration has  taken  root — and  it  has  taken  root  to  a 
greater  or  less  extent  among  all  the  civilizations  of 
modern  Europe — there  will  be  many  acts  which 
public  sentiment  judges  harmful,  but  which  it  re- 
frains from  repressing  because  the  evil  of  tyran- 
nical interference  outweighs  the  probable  good  to 
be  gained ;  and  there  will  be  a  vastly  greater  number 
of  acts  of  which  the  community  will  not  trouble 
itself  to  decide  collectively  whether  the  harm  out- 
weighs the  good  or  not,  because  it  prefers  the  slow 
process  of  experiment  to  any  premature  application 
of  social  judgment  and  administrative  repression. 
This  system  of  toleration  may  be  carried  to  such 
an  extreme  that  it  becomes  a  sort  of  political  in- 
difference.   When  it  reaches  this  stage,  it  gives  rise 


FREEDOM  AS  A  FOUNDATION  OF  ETHICS  105 

to  an  easy-going  doctrine  of  political  liberty  which 
is  as  Tinhistorical  as  the  doctrines  of  freedom  of 
the  will  or  of  liberty  of  private  judgment  already 
alluded  to — ^the  so-called  laissez  faire  doctrine  that 
if  you  can  only  let  people  sufficiently  alone  matters 
will  somehow  work  themselves  out  all  right,  and 
that  the  highest  goal  of  jurisprudence  is  an  or- 
ganized policy  of  non-interference,  where  each  in- 
dividual's privacy  is  fully  respected.  But  a  far 
larger  part  of  the  advocacy  of  the  policy  of  non- 
interference, especially  in  its  extreme  forms,  comes 
from  another  quarter.  It  comes  from  men  who  are 
not  content  with  tolerating  the  exercise  of  individ- 
ual selfishness  as  harmless,  but  give  it  their  positive 
approval  as  a  means,  and  commonly  a  most  effective 
means,  to  the  attainment  of  the  general  good. 

The  conduct  of  the  business  of  any  civilized 
society  involves  the  doing  of  a  great  many  things 
which  are  unpleasant  and  disagreeable  to  the  indi- 
viduals involved.  Society  has  at  its  command  sev- 
eral agencies  for  making  its  individual  members 
assume  these  necessary  inconveniences  and  pains. 
It  can  rely  on  constraint,  either  physical  or  moral, 
on  sympathy,  or  on  self-interest.  In  the  earlier 
stages  of  civilization  it  makes  very  large  use  of 
constraint.  In  all  stages,  early  and  late,  sympathy 
is  an  important  factor  in  securing  the  results  de- 


106        FREEDOM  AND  RESPONSIBILITY 

sired.  The  systematic  use  of  self-interest  as  a  means 
to  this  end  is  of  subsequent  origin.  But  as  time 
goes  on  and  civilization  advances,  constraint  falls 
into  the  background.  In  a  thoroughly  civilized 
community  the  physical  penalties  of  the  law  are 
invoked  only  in  exceptional  instances,  and  the  moral 
terrors  are  much  mitigated.  The  fear  of  the  anger 
of  the  gods  gives  place  to  the  fear  of  public  opinion ; 
and  for  the  majority  of  the  citizens,  this  public 
opinion  is  based  on  views  and  sentiments  which  they 
themselves  feel  so  strongly  that  its  demands  do  not 
produce  the  feeling  of  constraint  which  they  other- 
wise would.  The  precepts  of  such  a  public  opinion 
fall  in  line  with  a  man's  own  sympathies;  so  that 
in  a  really  well  developed  community  it  is  often  im- 
possible to  draw  any  sharp  line  between  the  two  and 
undertake  to  say  where  the  motive  of  sympathy 
ceases  and  that  of  obedience  to  public  opinion 
begins. 

All  this  relaxation  of  constraint  gives  the  indi- 
vidual more  room  to  exercise  choice  as  to  his  con- 
duct, and  makes  it  increasingly  important  to  enlist 
his  self-interest  on  the  side  of  public  service  and 
social  order.  To  a  certain  extent  this  is  an  easy 
thing  to  do.  If  a  man  has  made  any  progress  in 
civilization,  his  sympathies  with  his  children  are  so 
strong  that  he  will  be  sure  of  regarding  their  inter- 


FREEDOM  AS  A  FOUNDATION  OF  ETHICS  107 

ests  as  his  own,  and  will  promote  their  welfare  and 
enjoyment  as  an  essential  element  in  his  personal 
gratification.  What  holds  true  of  his  dealings  with 
his  children  is  true,  though  to  a  less  extent,  of  his 
dealings  with  his  relatives  and  friends.  Their 
pleasure  is  his  pleasure;  and  even  on  grounds  of 
mere  selfishness  he  would  not  be  likely  to  do  that 
which  would  give  them  pain  or  do  them  harm,  on 
account  of  the  indirect  distress  to  himself  which 
would  be  caused  thereby.  Indeed,  the  same  prin- 
ciple applies  to  his  wider  relations  with  the  general 
public.  The  approbation  of  his  fellow  men  has 
become  so  far  a  valuable  object  to  him  personally 
that  he  is  not  going  to  shirk  inconveniences  or  run 
away  from  dangers  if  by  so  doing  he  will  forfeit 
that  approbation. 

There  have  been  many  philosophers,  both  ancient 
and  modern,  who  were  disposed  to  base  their  theory 
of  morals  on  the  assumption  of  this  identity  of  self- 
interest  and  public  interest.  ''Nihil  Jionestum 
quod  non  idem  utile" — there  is  no  moral  good 
which  cannot  be  proved  advantageous  to  the  indi- 
vidual— this  was  the  theme  which  Cicero  discussed 
in  his  De  Oflficiis,  and  to  which  he  gave  a  qualified 
assent.  The  same  theme  was  discussed  and  the 
same  qualified  assent  repeated  by  Herbert  Spencer, 
in  his  Data  of  Ethics,  nearly  two  thousand  years 


108        FREEDOM  AND  RESPONSIBILITY 

afterward.  The  philosophers  who  hold  this  view 
of  morals  argue  somewhat  as  follows :  All  our  rea- 
soning about  conduct  is  based  upon  the  assumption 
that  an  individual  has  a  choice  between  different 
courses  of  action,  and  is  to  exercise  his  private  judg- 
ment in  preferring  one  to  another.  If  he  makes  a 
choice  and  uses  his  reason,  he  is  by  the  very  neces- 
sities of  the  case  bound  to  choose  that  course  of 
conduct  which  he  regards  as  more  advantageous 
for  himself.  Of  course  this  does  not  mean  that  he 
chooses  that  line  whose  advantages  are  more  ob- 
vious. On  the  contrary,  if  he  is  at  all  intelligent, 
he  will  be  led  to  give  greater  weight  to  remote  ends 
than  a  less  intelligent  man  would  give,  and  will 
care  more  for  the  higher  pleasures  in  comparison 
with  the  lower  ones.  He  will  lay  less  stress  upon 
physical  enjoyments,  and  more  upon  the  pleasures 
of  sympathy,  of  public  approbation,  and  of  that 
content  which  is  found  only  in  the  approval  of  his 
own  conscience.  But  after  making  all  these  expla- 
nations, the  philosophers  tell  us  the  fact  remains 
that  calculated  conduct  is,  in  the  very  nature  of  the 
case,  selfish  conduct;  and  that  under  such  circum- 
stances the  good,  as  distinct  from  the  bad,  repre- 
sents the  more  enlightened  and  intelligent  conduct, 
as  distinct  from  the  more  shortsighted  and  self -de- 
structive.   The  pursuit  of  physical  pleasure  speed- 


FREEDOM  AS  A  FOUNDATION  OF  ETHICS  109 

ily  brings  satiety  and  pain.  The  pursuit  of  ease 
and  cowardice  brings  public  contempt.  Therefore 
voluptuousness  and  cowardice  are  bad.  The  love 
of  one's  family  and  friends,  the  reward  of  social  ap- 
probation, and  best  of  all,  the  peace  of  mind  which 
is  engendered  by  a  good  conscience,  are  lasting 
pleasures,  which  have  in  them  a  depth  which  the 
voluptuary  or  the  coward  cannot  understand.  They 
therefore  can  be  called  good;  and  we  can  appeal 
to  men  to  prefer  them  to  shortsighted  pleasure  seek- 
ing on  grounds  of  mere  intelligence.  Nay  more ;  if 
we  admit  the  fact  of  choice  and  the  possibility  of 
calculation,  this  is  the  only  logical  ground  on  which 
to  make  such  an  appeal.*  Such  was  the  reasoning 
of  the  Epicureans ;  such  has  been  the  reasoning  of 
no  small  part  of  the  philosophic  students  of  ethics, 
whether  in  the  ancient  or  the  modern  world. 
But  there  is  an  obvious  difficulty  in  this  system 

*  This  argument  is  sometimes  carried  to  the  extent  of  imply- 
ing that  every  man  is  really  actuated  by  considerations  of  his 
own  happiness,  even  when  he  thinks  he  is  working  for  others — 
that  if  he  sacrifices  himself  for  his  friend,  it  is  because  he  is  so 
constituted  that  it  gives  him  more  pain  to  see  his  friend  suffer 
than  to  put  his  own  life  in  peril.  But  this  line  of  reasoning  in- 
volves a  fallacy.  It  is  true  that  a  man  always  obeys  the  strong- 
est motive ;  it  is  not  true  that  strength  of  motive  and  quantity 
of  happiness  are  the  same  thing.  Strength  of  motive  is  matter 
of  pure  intensity ;  quantity  of  happiness  involves  intensity  and 
duration  both.     If  we  believe  that  a  certain  course  of  conduct 


110        FREEDOM  AND  RESPONSIBILITY 

of  ethics  which  laid  it  open  to  criticism  from  the 
outset.  Not  all  men,  nor  a  majority  of  them,  are 
of  such  intelligence  as  to  render  it  safe  for  them 
to  make  their  own  happiness  a  conscious  end  or 
standard  of  right.  The  parallelism  of  a  man 's  own 
selfish  interests  with  those  of  the  community,  im- 
portant as  it  sometimes  may  prove,  is  very  incom- 
plete except  in  the  case  of  those  men  who  have 
attained  a  high  degree  of  advancement  in  civiliza- 
tion or  excellence  of  personal  character.  There  are 
unfortunately  some  people  who  abuse  their  children 
in  order  to  give  comfort  to  themselves,  a  still  larger 
number  who  evade  their  obligations  to  their  rela- 
tives for  the  sake  of  their  own  personal  convenience, 
and  an  enormous  number  with  whom  the  dictates 
of  convenience  or  cowardice — if  that  cowardice  is 
not  going  to  be  too  prominently  exposed — outweigh 
the  love  of  social  approbation.  Under  such  circum- 
stances, there  is  grave  danger  that  conduct  dictated 

will  give  us  happiness,  this  belief  strengthens  the  intensity  of 
our  motive  to  choose  that  line  of  conduct;  hut  the  liappiness  is 
not  the  same  thing  as  the  motive,  nor  is  it  the  only  thing  which 
determines  the  motive's  intensity.  If  a  man  has  much  self-con- 
sciousness and  little  sympathy,  his  own  future  happiness  will 
affect  him  intensely,  and  that  of  others  but  slightly  ;  if  he  is  less 
self-conscious  and  more  sympathetic,  other  people's  pleasure  or 
pain,  especially  if  visible,  may  cause  far  greater  intensity  of 
motive  than  does  the  prospect  of  his  own  future  happiness  or 
unhappiness. 


FREEDOM  AS  A  FOUNDATION  OF  ETHICS  111 

by  self-interest  will  be  selfish  in  the  bad  sense  of 
the  word — will  be  used  to  promote  the  interests  of 
the  individual  at  the  expense  of  those  of  the  com- 
munity. 

In  the  face  of  this  difficulty,  ancient  writers  have 
held  somewhat  different  views  from  modern  ones. 
The  ancient  philosophers  generally  considered  that 
free  thought  was  to  be  the  privilege  of  the  few 
rather  than  the  common  heritage  of  the  many.  It 
was  to  be  confined  to  those  whose  legal  position  was 
such  that  they  could  readily  identify  the  interests 
of  the  body  politic  with  their  own,  and  whose  in- 
telligence was  sufficient  to  make  them  prefer  the 
higher  and  more  permanent  pleasures  to  the  lower 
and  more  transient  ones.  The  study  of  justice  was 
to  be  the  monopoly  of  an  intellectual  aristocracy. 
For  the  great  bulk  of  the  community,  the  banausoi 
or  base  mechanicals,  it  was  necessary  to  preach  the 
virtues  of  courage  and  self-restraint  and  sympathy 
— virtues  which  did  not  involve  an  exercise  of  the 
intellect;  virtues  which  influenced  choice  in  the 
direction  of  the  public  welfare,  instead  of  empha- 
sizing its  character  as  an  individual  act  of  selfish 
reason. 

This  limitation  of  the  freedom  of  choice,  which 
seemed  natural  enough  to  the  philosophers  of  the 
ancient  world,  has  not  been  accepted  in  modern 


112        FREEDOM  AND  RESPONSIBILITY 

times.  This  is  partly  because  our  increasing  democ- 
racy of  intellect  has  led  us  to  feel  that  a  theory  of 
morals  which  is  good  for  anything  must  be  couched 
in  terms  sufficiently  general  to  let  us  preach  it  to 
everybody ;  but  still  more  because  the  modern  world 
has  witnessed  an  extraordinary  economic  develop- 
ment in  which  the  self-interest  of  individuals  has 
actually  been  turned  to  the  benefit  of  the  community 
in  unexpected  ways.  This  economic  history  has 
been  so  striking  that  people  have  not  only  accepted 
its  teachings,  but  exaggerated  them.  Self-interest 
in  the  industrial  field  has  been  made  to  do  so  much 
that  many  thinkers  overestimate  its  benefits,  and 
are  quite  prepared  to  extend  it  to  other  fields  where 
its  applicability  is  more  doubtful.  It  has  accom- 
plished so  much  in  one  line  that  people  are  prcne 
to  believe  that  it  would  do  everything  that  society 
needs,  in  that  line  and  in  all  others,  if  it  only  had 
a  fair  chance. 

The  course  of  events  in  this  industrial  history 
may  be  summarized  as  follows : 

Down  to  the  close  of  the  thirteenth  century  peo- 
ple looked  to  compulsion  rather  than  to  freedom — 
to  public  authority  rather  than  to  personal  interest 
— as  a  means  of  getting  the  world's  work  done. 
Men  were  forced  to  labor  by  fear  of  the  lash  oi 
the  prison,  instead  of  being  encouraged  to  labor  by 


FREEDOM  AS  A  FOUNDATION  OF  ETHICS  113 

the  opportunity  of  bettering  their  social  condition. 
Property  right  in  these  early  days  was  essentially 
a  military  tenure,  established  for  the  sake  of  public 
security.  People  were  given  holdings  of  land  in 
consideration  of  the  service  as  soldiers  which  they 
had  rendered  or  could  render  to  the  government. 
The  land  which  they  thus  held  these  landholders 
did  not  till  or  improve.  It  was  tilled  for  the  most 
part  by  villeins,  who,  in  return  for  the  privilege  of 
being  allowed  to  occupy  a  part  of  the  land,  and  call 
it  in  a  measure  their  own,  gave  one-half  of  their 
time  in  compulsory  labor  for  the  military  chieftain 
or  feudal  lord. 

In  the  course  of  the  thirteenth  and  fourteenth 
centuries,  however,  a  large  portion  of  the  English 
villeins  were  allowed  to  substitute  money  payments 
for  compulsory  labor  as  a  condition  of  holding 
their  land.  The  immediate  motive  for  this  change 
was  the  need  of  the  feudal  lords  for  money ;  but  its 
ultimate  effect  was  a  very  great  increase  in  the 
wealth  of  the  country,  public  as  well  as  private. 
Under  the  old  system  of  compulsory  labor  the  peas- 
ant had  no  motive  to  increase  his  production.  He 
did  as  little  as  he  could  without  being  punished. 
Under  the  new  system  he  had  every  motive  to  do  as 
much  as  he  could ;  for  whatever  he  produced  above 
the  fixed  money  rent  was  a  benefit  to  him  individ- 


114        FREEDOM  AND  RESPONSIBILITY 

ually.  In  other  countries  the  change  was  not  car- 
ried so  far  as  in  England.  In  Italy,  for  instance, 
the  peasant,  instead  of  paying  the  feudal  lord  a 
fixed  money  rent,  generally  agreed  to  pay  him  one- 
half  of  the  produce.  Thus  he  got  only  one-half 
the  benefit  of  his  increased  activity,  instead  of  the 
whole ;  and  the  effect  in  stimulating  labor  was  but 
half  as  good  as  that  of  the  English  system.  But  in 
every  European  country,  as  far  as  the  change 
was  carried  out,  it  increased  the  laborer's  feeling 
of  personal  independence  and  his  contribution  to 
the  public  wealth. 

For  the  benefit  resulting  from  increased  produc- 
tion did  not  stop  with  the  first  owner  of  the  product. 
It  distributed  itself  throughout  the  community. 
The  accumulation  of  food  supplies  afforded  a  re- 
serve on  which  the  nation  could  fall  back  in  time 
of  war  or  famine  or  any  other  event  which  strained 
its  economic  resources.  And  when  there  was  no 
war  or  famine  the  surplus  could  be  used  for  paying 
men  who  were  engaged  in  the  work  of  agricultural 
improvement,  in  the  development  of  machinery,  in 
the  building  of  shops,  or  in  the  production  of  poems 
and  plays.  The  existence  of  capital  made  invention 
possible;  and  the  chief  benefit  of  these  inventions 
went,  not  to  the  owner  or  investor  of  the  capital, 
but  to  the  public  as  a  whole.    The  England  of  the 


FREEDOM  AS  A  FOUNDATION  OF  ETHICS  115 

thirteenth  century  had  been  a  country  of  unim- 
proved farms,  whose  methods  of  production  were 
rude  and  whose  inhabitants  lived  from  hand  to 
mouth.  The  England  of  the  eighteenth  century 
was  a  country  of  highly  improved  land,  with  well 
developed  industrial  arts,  producing  much  larger 
amounts  both  of  food  and  of  other  things  that  made 
life  worth  living  than  it  did  five  hundred  years 
before.  The  chief  thing  that  made  the  change 
possible  was  that  system  of  industrial  emancipation 
which  gave  men  a  selfish  motive  to  work  hard  and 
to  invest  their  capital  in  improvements.  Of  course 
this  change  was  not  unaccompanied  with  hardship. 
There  were  some  men  whose  lot  under  the  new  sys- 
tem was  worse  than  under  the  old ;  but  of  its  good 
effect  on  the  power  and  prosperity  of  the  nation  as 
a  whole  there  can  be  no  doubt  whatever. 

Neither  the  laborers  nor  the  capitalists  who  con-; 
tributed  to  this  change  were  actuated  by  any  philan- 
thropic motive.  They  were  trying  to  make  all  the 
money  that  they  could.  The  significant  thing  is, 
that  by  letting  them  make  all  the  money  they 
could  the  community  had  helped  instead  of  hin- 
dered its  general  prosperity.  Selfishness  had  been 
made  to  contribute  to  the  common  good.  In  some 
commercial  transactions  the  coincidence  between 
individual  selfishness  and  common  good  was  so  un- 


116        FREEDOM  AND  RESPONSIBILITY 

expected  that  the  community  had  to  reverse  its  old 
ethics  completely.  Take,  for  instance,  the  system 
of  interest.  In  the  thirteenth  century  this  was  uni- 
versally condemned.  Nothing  could  appear,  at  first 
sight,  more  avariciously  selfish  than  the  attempt  to 
make  a  man  who  borrowed  money  of  you  pay  back 
more  than  he  had  borrowed,  simply  because  he  was 
in  present  trouble  and  could  not  help  himself.  For 
this  reason  our  forefathers  called  all  interest  by  the 
opprobrious  name  of  usury.  The  mediaeval  church 
condemned  it  as  a  sin ;  the  medieval  courts  punished 
it  as  a  wrong.  If  you  wanted  any  return  on  your 
money  you  were  told  to  invest  it  yourself,  and  con- 
tent yourself  with  profits  actually  earned.  But  the 
advantage  to  the  community  of  having  capital  con- 
trolled by  men  who  really  knew  how  to  manage  it — 
by  men  who  were  progressive  without  being  reck- 
less— was  so  great  that  it  was  found  desirable  to 
encourage  people  to  lend  their  money  to  such  men 
instead  of  investing  it  themselves.  The  system  of 
interest  was  a  means  of  giving  this  encouragement. 
It  allowed  the  lender,  who  had  accumulated  capital 
but  had  no  special  ability  in  managing  it,  to  get  the 
assurance  of  a  moderate  return ;  it  allowed  the  bor- 
rower, who  assumed  the  risk  and  responsibility  of 
directing  large  business  enterprises,  to  obtain  the 
surplus  gain  which  was  due  to  his  superior  talent. 


FREEDOM  AS  A  FOUNDATION  OF  ETHICS  117 

And,  most  important  of  all,  it  gave  the  community 
the  chance  to  have  its  disposable  stock  of  goods  used 
in  a  way  to  produce  the  maximum  of  industrial 
progress. 

But  the  most  striking  instance  of  the  harmony 
between  intelligent  self-interest  and  public  advan- 
tage was  seen  in  connection  with  the  sales  and  prices 
of  goods. 

The  old  theory  of  value  was  that  every  article 
had  a  just  price;  that  the  buyer  would  naturally 
try  to  pay  less  than  that  prioe,  the  seller  to  ex- 
act more;  that  whichever  man  succeeded  gained  a 
slight  earthly  advantage  at  corresponding  peril  to 
his  soul — ^this  peril  being  especially  great  in  the  case 
of  the  seller,  because  he  was  usually  more  skilful 
than  the  buyer  and  was  likely  to  make  this  unfair 
gain  a  means  of  livelihood.  For  the  double  purpose 
of  protecting  the  buyer  against  dangers  in  this  life 
and  the  seller  against  dangers  in  the  life  to  come,  it 
was  habitual  for  the  authorities  to  fix  prices  on 
many  of  the  articles  of  common  use,  and  to  exact 
severe  penalties  for  any  variation  from  these  prices. 
If  the  authorities  thought  that  a  loaf  of  bread  ought 
to  cost  two  pence,  they  set  the  price  accordingly 
and  cut  off  the  ears  of  the  offending  baker  who 
should  undertake  to  charge  more.  Of  course  the 
result  of  this  was  to  fix  the  price  at  two  pence.    No 


118         FREEDOM  AND  RESPONSIBILITY 

baker  was  going  to  jeopardize  his  soul's  salvation 
and  his  ears  at  the  same  time.  The  effect  of  this 
low  price  was  that  the  consumers  used  bread  as 
freely  as  before,  instead  of  economizing  it;  and 
that  after  a  few  weeks,  in  place  of  the  slight  de- 
ficiency of  supply  which  was  tending  to  cause  the 
increase  in  price,  the  community  found  itself  face 
to  face  with  an  actual  scarcity  of  the  necessaries  of 
life.  The  artificial  system  of  price  regulation  had 
intensified  the  very  evil  that  it  was  intended  to  pre- 
vent, A  far  wiser  thing  to  do  was  to  recognize  that 
the  high  price  was  the  symptom  of  an  evil,  rather 
than  the  cause  of  evil  itself.  If  the  baker  was  allowed 
to  advance  his  price  to  two  and  a  half  pence,  this  in 
the  first  place  caused  economy  of  bread ;  and  thus, 
by  exercising  a  little  care  at  the  beginning,  the  com- 
munity avoided  the  terrible  evils  of  famine  at  the 
end.  But  this  was  not  all.  The  advance  of  price  to 
two  and  a  half  pence  tended  to  attract  supplies  of 
wheat  and  flour  from  other  communities  where 
there  had  been  no  such  scarcity.  By  refusing  to 
allow  any  increase  of  price,  you  prevented  people 
in  other  places  from  coming  to  your  assistance.  By 
allowing  the  increase  you  encouraged  them  to  re- 
lieve the  scarcity ;  so  that  after  a  brief  period  the 
price  of  bread  in  open  market  tended  to  return 
nearly  to  the  former  level.    The  high  price  was  but 


FREEDOM  AS  A  FOUNDATION  OF  ETHICS  119 

a  symptom  of  a  temporary  or  local  scarcity.  The 
man  who  attempted  to  lower  the  price  by  law  was 
like  the  physician  who  should  attempt  to  treat  a 
disease  by  repressing  its  manifestations.  The  man 
who  let  things  take  care  of  themselves  was  dealing 
with  the  disease  by  the  more  enlightened  method 
of  providing  natural  means  for  the  removal  of  its 
cause. 

This  experience  with  sales  and  prices  was  the 
basis  of  the  principle  of  competition,  which  has 
taken  such  a  hold  on  modern  industrial  life.  If 
goods  are  scarce  we  let  the  buyers  bid  against  one 
another;  holding  that  by  this  process  of  selection 
we  shall  put  such  supplies  as  we  have  in  the  place 
where  they  are  most  urgently  needed,  and  shall 
stimulate  real  economy  in  the  use  of  the  article  by 
the  temporary  increase  in  its  price.  If  the  seller 
thus  obtains  a  considerable  gain,  we  regard  this 
gain  as  fairly  due  to  his  forethought  in  providing 
the  market  with  a  supply  of  goods  which  would 
otherwise  have  been  absent ;  and  we  interfere  only 
when,  by  some  combination  or  monopoly,  he  has 
produced  an  artificial  scarcity  instead  of  helping 
to  meet  one  which  already  existed  from  natural 
causes.  We  believe  also  that  the  best  remedy  for 
a  scarcity  is  to  stimulate  competition  on  the  part 
of  other  producers  who  will  devote  their  energies 


120        FREEDOM  AND  RESPONSIBILITY 

toward  bringing  new  supplies  to  market ;  and  who, 
if  the  scarcity  is  widespread  or  long  continued,  will 
invest  new  capital  in  the  production  of  the  goods 
thus  urgently  needed.  We  believe  that  the  ex- 
ceptional profit  which  these  producers  obtain  until 
the  deficiency  of  supply  has  been  made  good  is  but 
a  natural  and  normal  means  of  stimulating  them 
to  the  utmost  exertions  in  making  good  the  defi- 
ciency and  of  rewarding  them  for  their  foresight 
in  doing  it  rightly. 

Thus  the  pursuit  of  self-interest  is  not  always  to 
be  monopolized  by  the  few,  as  the  ancient  philoso- 
phers supposed.  These  last  two  matters — interest 
and  prices — were  things  where  the  ancient  writers 
believed  the  exercise  of  selfishness  most  unsafe, 
and  its  results  most  destructive;  and  yet  these  are 
two  cases  where  it  does  the  clearest  public  good. 

There  can,  I  think,  be  no  reasonable  doubt  that 
the  world  is  far  better  served  under  this  competitive 
system  than  under  any  other  system  of  industrial 
regulation  which  has  hitherto  been  tried.  The 
effect  has  been  so  marked  that  modern  law — ^the 
English  first  and  the  Continental  afterward — ^has 
gradually  adjusted  itself  to  the  conception  that 
prices  should  be  let  alone  wherever  competition  can 
regulate  them ;  that  a  price  obtained  in  open  market, 
without  fraud  or  artificial  monopoly,  is  ipso  facto 


FREEDOM  AS  A  FOUNDATION  OF  ETHICS  121 

a  fair  price;  and  that  a  man  does  no  wrong  to 
those  with  whom  he  deals  if  he  buys  as  cheaply  as 
he  can  and  sells  as  dearly  as  he  can.  These  legal 
principles  have  been  reflected  in  our  ethical  con- 
ceptions. We  assume  that  a  competitive  price  is  a 
morally  just  price;  that  what  a  man  can  obtain 
for  an  article  in  open  market  at  the  moment  repre- 
sents its  present  value ;  and  that  the  average  price 
which  he  can  obtain  in  the  long  run  represents  its 
true  or  permanent  value.  We  believe  that  under 
ordinary  conditions  the  business  man  does  his  duty 
by  the  community  if  he  observes  the  rules  of  the 
game  of  competition,  as  thus  laid  down;  because 
by  a  general  adoption  of  these  rules  the  collective 
interest  of  the  industrial  community  has  been  well 
served. 

The  strength  of  this  theory  of  competition  has 
been  increased  because  of  the  fact  that  its  oppo- 
nents have  rarely  done  it  full  justice.  They  have 
been  so  impressed  by  certain  incidental  evils  con- 
nected with  the  system — smaller  capitalists  pushed 
to  the  wall  by  larger  capitalists;  intelligent  work- 
men thrown  out  of  employment  by  the  process  of 
industrial  readjustment  to  make  room  for  those 
cheaper  and  less  skilled — that  they  have  shut  their 
eyes  to  its  essential  excellences.  They  have  said 
that  competition  was  nothing  but  a  new  name  for 


122         FREEDOM  AND  RESPONSIBILITY 

the  Darwinian  struggle  for  existence  as  applied  in 
modern  business ;  that  it  was  a  glorification  of  the 
principle  of  survival  of  the  strongest.  This  is  a 
very  imperfect  view  of  the  case.  Competition  is 
something  essentially  different  in  character  from 
the  struggle  for  existence  among  the  lower  animals. 
It  is  a  struggle  so  ordered  that  outside  parties  reap 
a  benefit,  instead  of  suffering  an  injury.  This  is 
its  conspicuous  and  distinctive  feature.  If  cats  are 
struggling  to  get  the  same  bird,  and  bosses  are 
struggling  to  get  the  same  workmen,  the  relation 
of  the  cats  to  one  another  bears  some  analogy  to  the 
relation  of  the  bosses  to  one  another.  But  there  is 
this  radical  difference  in  the  whole  transaction: 
that  the  more  cats  there  are,  the  worse  for  the  bird ; 
while  the  more  bosses  there  are,  the  better  for  the 
workmen.  Competition  is  what  its  name  implies — a 
concurrent  petition;  an  effort  on  the  part  of  differ- 
ent people  to  do  the  best  they  can  for  somebody 
else,  in  order  to  induce  him  to  enter  into  dealings 
with  them. 

Unfortunately,  it  is  not  only  the  opponents  of 
competition  who  fail  to  recognize  this  as  its  essen- 
tial feature.  The  advocates  of  the  system  are  prone 
to  make  a  somewhat  similar  mistake.  They  apply 
the  substantially  sound  theory  that  the  value  of  a 
thing  is  what  it  will  bring  in  open  market  to  cases 


FREEDOM  AS  A  FOUNDATION  OF  ETHICS  123 

where  conception  of  open  market  is  not  accurate — 
sometimes  because  the  market  is  not  open,  and  some- 
times because  the  thing  is  not  marketable.  They 
go  so  far  as  to  assume  that  any  adjustment  which  is 
the  result  of  free  play  among  a  mixture  of  conflict- 
ing social  elements,  strong  and  weak,  is  presumably 
right,  and  should  be  interfered  with  only  when  the 
resulting  evils  are  so  clear  as  to  furnish  the  most 
obvious  grounds  for  state  action.  Starting  from 
the  theory — which  is  probably  correct — ^that  a  busi- 
ness which  pretends  to  be  managed  on  better  prin- 
ciples than  those  of  self-interest  usually  turns  out 
to  be  managed  on  worse  principles,  they  draw  the 
unwarranted  conclusion  that  this  same  theory  will 
hold  true  of  other  departments  of  life  where  the 
special  conditions  affecting  business  competition  are 
absent.  They  permit  self-interest  to  be  the  dom- 
inant guide  in  a  man's  public  relations,  and  some- 
times even  in  his  personal  relations  also.  They  take 
the  principle  of  the  ancient  philosophers,  that  the 
individual  will  be  governed  by  selfish  motives  when- 
ever he  tries  to  calculate  the  results  of  his  conduct ; 
and,  seeing  that  the  application  of  this  theory  works 
out  good  results  in  commercial  life,  they  conclude 
that  we  can  find  ways  of  making  it  bring  out  equally 
good  results  everywhere  else.  The  account  of  ra- 
tional egoism  in  Herbert  Spencer's  Data  of  Ethics 


124         FREEDOM  AND  RESPONSIBILITY 

may  serve  as  a  good  example  of  this  mental  attitude. 
The  author  feels  that  the  increasing  exercise  of  en- 
lightened selfishness  is  inevitable;  and  with  this 
probability  in  view,  he  does  all  he  can  to  prove  it 
to  be  beneficial.  Whatever  may  be  thought  of  this 
book  and  its  conclusions,  there  can  be  no  doubt 
that  it  represents  the  attitude  of  a  very  large  body 
of  intelligent  readers  toward  questions  of  practical 
and  theoretical  morality. 

The  modern  world  cannot  accept  the  position  of 
the  ancient  philosophers  in  treating  egoism  as  a 
moral  theory  to  be  monopolized  by  a  few  highly 
educated  philosophers  or  jurists.  The  world  de- 
mands that  whatever  its  theories  are,  they  should 
be  of  a  nature  to  be  preached  in  the  market  place. 
If  we  claim  that  self-interest  is  a  correct  principle, 
we  must  give  the  people  a  chance  to  act  on  it  and  see 
what  comes  thereof.  If  evil  and  destruction  come, 
it  will  prove  that  we  must  modify  our  statement  of 
the  theory.  The  actual  everyday  morality  of  each 
generation  is  determined  by  the  degree  of  success 
which  has  attended  the  operation  of  principles 
which  were  tried  experimentally  by  the  generations 
immediately  preceding.  Down  to  about  1850  the 
complete  extension  of  self-interest  over  the  eco- 
nomic field  and  its  partial  extension  into  other 
fields  produced  an  amount  of  good  which  far  out- 


FREEDOM  AS  A  FOUNDATION  OF  ETHICS  125 

weighed  the  incidental  evil.  Therefore  the  body  of 
thinking  men  in  the  last  generation  was  disposed 
to  consider  it  an  excellent  theory  to  accept.  Our 
experience  of  its  further  development  in  the  last 
half  of  the  nineteenth  century  has  been  more 
doubtful;  and  there  is  a  corresponding  doubt 
whether  the  next  generations  are  going  to  accept 
individualistic  theories  as  unreservedly  as  most 
men  do  today. 


VI 

THE   LIMITS   OP   INDIVIDUAL   FREEDOM 

The  theory  that  individual  selfishness  could  be 
trusted  to  promote  the  common  good  was  so  com- 
fortable a  doctrine  that  it  found  very  strong  pre- 
possessions in  its  favor.  Those  who  were  solicitous 
for  the  common  good  were  pleased  to  think  that  it 
could  be  attained  by  so  easy  a  method.  Those  who 
believed  that  intelligent  people  were  likely  to  be 
selfish  whenever  they  reasoned  concerning  their 
conduct  were  glad  to  be  assured  that  this  practice 
would  do  good  rather  than  harm  to  the  public. 
Our  experience  during  the  first  half  of  the  nine- 
teenth century  seemed  to  justify  the  advocates  of 
individualism  in  these  optimistic  hopes.  Most  of 
the  restrictions  upon  trade  which  had  been  inher- 
ited from  previous  centuries  were  so  bad  that  their 
removal  paved  the  way  for  a  better  state  of  things. 
By  giving  each  man  liberty  to  choose  the  line  of 
life  which  best  suited  him,  we  added  to  our  indus- 
trial efficiency.  By  encouraging  the  investment  of 
capital  wherever  any  one  saw  a  chance  for  profit, 
126 


LIMITS  OF  INDIVIDUAL  FREEDOM      127 

we  stimulated  invention  and  enabled  the  arts  to 
develop  as  they  had  never  done  before.  By  allow- 
ing competition  to  regulate  prices,  we  provided  for 
better  economy  in  the  distribution  of  the  world's 
products  and  for  greater  enjoyment  in  their  con- 
sumption. There  were  indeed  marked  instances  of 
evil  in  the  midst  of  this  general  good.  The  abuse 
of  labor,  and  particularly  of  child  labor,  under  long 
hours  and  uncomfortable  conditions  of  work  re- 
quired special  legislation  to  suppress  it.  But  on 
the  whole,  the  evils  incident  to  the  change  seemed 
so  few  and  the  advantages  so  many  that  people's 
minds  dwelt  upon  the  latter  to  the  exclusion  of  the 
former.  Under  these  circumstances,  men  were  dis- 
posed to  regard  the  principle  of  non-interference 
not  as  a  principle  of  administration,  but  as  a 
fundamental  rule  of  social  action ;  not  as  a  maxim 
of  experience,  but  as  a  postulate  of  thought. 

This  dogmatism  in  stating  the  principles  of  indi- 
vidual liberty,  and  this  optimism  in  believing  its 
results  to  be  universally  good,  naturally  provoked 
a  reaction.  About  1830  there  arose  a  school  of 
thought  which  cast  doubt  upon  the  economic  ad- 
vantage of  the  unrestricted  liberty  of  each  man  to 
do  as  he  pleased,  and  which  set  up  a  principle  of  so- 
cialism as  opposed  to  that  of  individualism.  These 
writers,  scattered  through  France  and  Germany, 


128         FREEDOM  AND  RESPONSIBILITY 

emphasized  the  need  of  organized  collective  activ- 
ity. That  freedom  which  the  advocates  of  non-in- 
terference regarded  as  the  final  stage  in  economic 
history  was,  to  the  members  of  this  new  school,  only 
an  intermediate  step  in  the  course  of  economic 
progress.  Before  the  revolution  of  1789,  said 
Ferdinand  Lassalle,  one  of  the  leaders  of  this  new 
socialistic  movement,  Europe  had  solidarity  with- 
out freedom.  Since  that  date  it  has  had  free- 
dom without  solidarity.  A  third  stage  of  evolution 
will  combine  the  two,  and  give  the  poor  man  some- 
thing more  than  the  mere  name  of  freedom,  which 
under  present  conditions  is  little  more  than  the 
assurance  of  being  crushed  to  the  wall. — The  spread 
of  these  ideas  was  for  the  moment  checked  by 
the  revolution  of  1848,  with  which  most  of  the 
leaders  of  European  socialism  were  identified,  and 
whose  failure  involved  them  in  a  certain  measure 
of  discredit.  But  after  a  brief  interval  ideas  sim- 
ilar to  those  of  Lassalle  began  to  take  root  in  many 
different  quarters — among  practical  men  as  well  as 
theorists,  conservatives  as  well  as  agitators.  The 
philanthropist  demanded  special  laws  to  regulate 
factories  in  the  public  interest,  because  self-interest 
provided  no  remedy  against  excessive  hours  and  did 
not  prevent  the  use  of  methods  of  manufacture  dan- 
gerous to  life  and  health.    The  railroad  manager 


LIMITS  OF  INDIVIDUAL  FREEDOM      129 

was  inclined  to  favor  the  principle  of  monopoly  in 
industries  like  his  own,  because  he  saw  the  waste 
of  capital  and  irregularity  of  organization  which 
was  consequent  upon  the  building  of  parallel  roads. 
The  trades  unionist  was  still  more  frankly  in  favor 
of  regulations  looking  toward  the  monopoly  of 
labor,  both  for  his  own  special  ends  and  for  the 
sake  of  what  he  believed  to  be  the  good  of  the  work- 
ing classes  as  a  whole.  The  protectionist,  however 
much  he  might  desire  to  see  free  competition  within 
each  country,  made  such  sweeping  exceptions  to 
this  principle  in  the  trade  between  different  coun- 
tries as  to  weaken  its  hold  upon  the  public  mind; 
and  it  is  well  known  that  with  the  increase  of  na- 
tional feeling  among  different  countries  in  the  last 
two  generations  there  has  been  a  great  increase  in 
the  protectionist  sentiment.  And  even  those  who 
were  not  greatly  affected  by  any  of  these  move- 
ments— who  were  neither  reformers  nor  monop- 
olists, trades  unionists  nor  protectionists — have 
been  forced  to  recognize  that  competition  and  non- 
interference act  less  perfectly  than  was  once  sup- 
posed, and  must  be  applied  with  more  reservations 
than  some  of  our  fathers  assumed.  Take  for  in- 
stance the  point  at  which  competition  was  supposed 
to  work  best — the  regulation  of  prices.  The  price 
theory  of  Adam  Smith  and  Ricardo  was  based  upon 


130         FREEDOM  AND  RESPONSIBILITY 

the  idea  that  if  prices  were  unfairly  low,  producers 
could  withdraw  from  business  until  the  supply  was 
so  reduced  that  the  price  returned  to  a  remunera- 
tive level;  and  conversely,  that  if  prices  were  too 
high,  new  producers  could  enter  into  competition 
until  the  supply  was  increased  and  the  rate  of  profit 
reduced  to  a  reasonable  figure.  But  in  industries 
requiring  large  permanent  investment  neither  of 
these  conditions  is  realized.  If  the  supply  of 
products  from  a  certain  factory  is  inadequate  to 
meet  the  demand  for  its  goods,  we  must  wait  months 
before  we  can  expect  to  have  relief  from  a  com- 
peting factory ;  if  the  supply  of  transportation  over 
a  certain  railroad  is  inadequate  to  meet  the  demand 
for  its  services,  we  must  wait  years  before  relief 
can  be  reached  by  a  competing  railroad.  If,  on 
the  other  hand,  prices  are  too  low,  it  is  almost  im- 
possible for  a  factory  or  a  railroad  already  existing 
to  withdraw  from  competition.  The  capital  re- 
mains, whether  business  goes  on  or  not.  It  involves 
worse  loss  to  let  it  go  wholly  to  waste  than  to  sell 
goods  or  services  below  cost.  Under  conditions  like 
these  we  see  great  fluctuations  in  rates,  which  com- 
petition is  powerless  to  prevent. 

Nay,  such  competition  as  there  is  tends  to  increase 
these  fluctuations  by  the  irregular  and  spasmodic 
character  of  its  action.    If  it  acts  at  some  places  and 


LIMITS  OF  INDIVIDUAL  FREEDOM      131 

not  at  others  we  have  discrimination,  usually  in 
favor  of  the  large  city  and  against  the  country 
town  or  farming  locality — a  thing  which  intensifies 
the  dangerous  drift  toward  the  large  cities  which 
is  characteristic  of  recent  years.  If  it  acts  at  some 
times  and  not  at  others,  we  have  those  alternations 
between  periods  of  high  price  and  low  price  which 
form  one  of  the  most  unfortunate  features  in  a  com- 
mercial crisis.  Such  spasmodic  competition  is  fierce 
while  it  lasts,  and  it  has  the  effect  of  teaching  the 
different  competitors  to  exert  themselves  to  the  ut- 
most to  meet  the  needs  of  the  public.  But  it  does 
not  have  the  effect  of  steadying  prices,  nor  ensuring 
equal  treatment  to  the  different  consumers.  It  has 
retained  its  force  as  a  stimulus ;  it  has  lost  its  force 
as  a  regulator  of  charges. 

But  there  are  many  lines  in  which  even  this 
partial  and  imperfect  competition  is  becoming  a 
thing  of  the  past.  In  some  forms  of  business  the 
masses  of  capital  needed  for  the  successful  use  of 
modern  inventions  are  so  large  that  this  fact  of 
itself  creates  a  monopoly.  In  others,  the  evils 
arising  from  the  irregular  and  spasmodic  competi- 
tion just  described  are  so  serious  that  different  per- 
sons engaged  in  the  same  line  of  business  arrange  to 
form  a  monopoly,  by  the  consolidation,  virtual  or 
actual,  of  all  the  competing  concerns.    When  this 


132        FREEDOM  AND  RESPONSIBILITY 

result  has  been  brought  about,  the  social  machinery 
on  which  our  fathers  relied  for  securing  fair  prices 
has  fallen  to  the  ground.  It  may  be  that  the  new 
mechanism  which  has  come  in  its  place  will  ulti- 
mately prove  as  good  as  the  old;  but  it  is,  at  any 
rate,  wholly  different  in  character.  Where  we  had 
competing  concerns  engaged  in  supplying  the  mar- 
ket, the  consumer  was  immediately  and  directly 
protected  by  the  fact  that  if  one  man  did  not  serve 
him  properly  he  could  go  to  another ;  and  the  knowl- 
edge that  the  consumer  had  this  resource  compelled 
the  several  competitors  to  consult  his  interests 
rather  than  their  own.  Where  consolidation  has 
been  brought  about,  there  is  no  such  immediate 
protection.  The  producer  knows  that  the  consumer 
has  no  other  equally  good  source  of  supply  to 
which  he  can  go,  and  this  fact  makes  a  difference 
in  his  whole  mental  attitude  and  that  of  his  agents. 
He  may  be,  and  in  the  case  of  our  best  leaders  of 
industry  probably  will  be,  anxious  to  do  what  the 
public  really  needs  and  do  it  well.  He  will  feel 
that  his  interests,  in  the  long  run,  cannot  be  differ- 
ent from  those  of  the  public;  that  the  size  of  his 
investment  of  capital  makes  a  large  market  impera- 
tive ;  that  this  large  market  can  be  secured  only  by 
a  system  of  low  prices ;  and  that  the  economy  which 
results  from  his  improvements  in  machinery  and 


LIMITS  OF  INDIVIDUAL  FREEDOM      133 

organization  must  therefore  be  used  for  the  benefit 
of  the  public,  in  order  that  it  may  prove  in  the  long 
run  to  be  any  economy  at  all.  Of  our  large  indus- 
trial monopolies  some,  including  the  most  successful 
ones,  have  been  managed  with  this  principle  in  view. 
But  there  are  others  which  have  not  been  thus  man- 
aged— whose  directors  have  been  more  concerned 
to  keep  prices  high  than  to  increase  their  volume  of 
traffic,  and  have  tried  to  retain  a  large  share  of  the 
benefits  of  their  economy  for  themselves  and  give 
only  a  small  share  to  the  public.  A  large  number 
of  men  who  have  been  charged  with  the  manage- 
ment of  consolidated  industries,  and  a  still  larger 
number  of  their  subordinate  agents,  have  assumed 
that  it  was  right  for  them  to  consult  their  own 
immediate  interests  under  a  system  of  monopoly 
as  freely  as  they  would  have  done  under  the  old 
system  of  competition.  They  have  not  realized  that 
the  widening  power,  both  for  good  and  for  evil, 
which  was  given  them  by  their  new  positions  ren- 
dered it  imperatively  necessary  for  them  to  take 
a  wider  view  of  their  duties  and  obligations  to  the 
public  than  was  needed  under  the  old  system,  and 
to  apply  the  principle  of  self-interest  with  more 
circumspection  than  was  necessary  in  previous  gen- 
erations. 

The  danger  to  the  consumer  which  is  incident  to 


134        FREEDOM  AND  RESPONSIBILITY 

our  present  industrial  conditions  is  most  clearly 
illustrated  when  we  have  two  monopolies  in  conflict 
with  one  another,  blocking  the  public  service  for 
their  own  strategic  ends.  Two  opposing  railroads 
in  the  same  territory,  for  instance,  will  arrange 
their  trains  so  that  they  do  not  connect  with  one 
another — each  being  more  concerned  with  injuring 
its  rival  than  with  meeting  the  wishes  of  the  travel- 
ling public.  Here  we  see  a  Darwinian  struggle  for 
supremacy,  with  little  or  nothing  of  that  service  to 
third  parties  which  is  the  essential  feature  in  the 
competitive  system.  The  most  marked  cases  of  this 
kind  occur  in  connection  with  those  large  strikes 
when  a  monopoly  of  labor  on  the  one  side  is  arrayed 
against  a  monopoly  of  capital  on  the  other.  The 
telegraph  service  was  thus  interrupted  in  1883.  The 
railroad  transportation  of  large  sections  of  the  com- 
munity was  tied  up  in  1877  and  1886  and  1894.  In 
1902  the  whole  production  of  anthracite  coal  was 
brought  practically  to  a  standstill  in  one  of  these 
conflicts,  with  no  regard  to  the  interests  of  the  con- 
sumers, and  with  great  suffering  to  many  of  them. 
I  shall  not  at  this  moment  inquire  into  the  rela- 
tive merits  of  the  case  of  the  coal  companies  on  the 
one  hand  or  of  the  men  on  the  other.  "We  are  not 
concerned  with  awarding  praise  or  blame  to  the 
parties  in  dispute.    We  are  concerned  with  a  much 


LIMITS  OF  INDIVIDUAL  FREEDOM      135 

broader  question — the  question  of  awarding  praise 
or  blame  to  society  for  its  economic  system.  We  are 
being  called  upon  to  decide  whether  the  operation  of 
individual  self-interest  is  a  safe  agency  for  ensuring 
public  service  and  meeting  public  necessities.  In 
this  case  we  find  that  it  was  not.  We  look  in  vain  in 
the  records  of  either  side  of  the  anthracite  coal  con- 
troversy for  any  recognition  of  the  special  obligation 
of  the  coal  producers  to  supply  the  public  with  a 
sufficient  quantity  of  coal  which  was  incident  to  their 
character  as  monopolies  of  capital  and  labor,  if  mo- 
nopolies of  capital  and  labor  were  to  be  allowed  to 
exist  at  all.  Both  parties  to  the  controversy  claimed 
the  right  to  do  everything  which  they  could  prop- 
erly have  done  if  competition  had  existed.  Of  intel- 
ligent preparation  to  have  adequate  supplies  in  the 
hands  of  the  consumers  there  was  very  little  in- 
deed. The  operators,  instead  of  encouraging  the 
importation  of  coal  from  abroad  at  an  early  period, 
in  order  to  forestall  the  market's  needs,  kept  saying 
up  to  the  very  last  moment  that  the  strike  was  on 
the  point  of  coming  to  its  end.  The  unions,  instead 
of  treating  the  public  distress  as  something  for 
which  they  were  at  least  partly  responsible,  seemed 
chiefly  concerned  to  aggravate  it  as  a  means  of 
putting  greater  pressure  upon  the  authorities  to  in- 
tervene.   The  breaches  of  the  obligation  of  contract 


136        FREEDOM  AND  RESPONSIBILITY 

that  did  occur,  and  the  threat,  happily  unfulfilled, 
of  a  monumental  breach  of  contract  by  a  sympathet- 
ic strike  in  the  bituminous  coal  regions,  show  clearly 
the  unfitness  of  many  of  the  persons  concerned 
to  be  relieved  from  the  industrial  control  of  compe- 
tition, until  some  other  means  of  control  has  been 
provided  in  its  stead.  The  principle  of  self-interest 
conspicuously  failed  to  protect  the  public  in  the 
anthracite  coal  strike.  We  may  expect  recurrent 
failures  of  this  sort  unless  we  can  either  modify  our 
industrial  conditions  or  our  principles  of  ethics. 

Can  we  thus  modify  the  industrial  conditions  ? 

Among  the  many  means  which  have  been  sug- 
gested for  doing  this,  three  deserve  special  atten- 
tion :  First,  an  extension  of  the  system  of  contracts 
between  companies  and  their  operatives,  so  that 
incorporated  capital  shall  deal  with  incorporated 
labor  in  a  responsible  fashion.  Second,  an  exten- 
sion of  the  conspiracy  laws  so  that  combinations 
adverse  to  the  interest  of  the  consumers  as  a  body 
can  be  treated  as  criminal  and  suppressed  by  the 
organized  force  of  the  community.  Third,  an  ex- 
tension of  the  principle  of  direct  government 
management — the  so-called  socialistic  principle — to 
those  industries  where  continuous  production  or 
continuous  service  is  a  matter  of  vital  public 
.necessity. 


LIMITS  OF  INDIVIDUAL  FREEDOM      137 

The  extension  of  the  system  of  long-time  con- 
tracts, with  proper  arrangements  for  arbitration  in 
case  of  misunderstanding,  is  on  its  face  the  simplest 
of  these  three  remedies.  If  we  could  assume  that 
such  a  contract  would  be  kept  when  once  made,  and 
that  the  decision  of  such  a  board  of  arbitration, 
when  once  established,  would  meet  cheerful  acqui- 
escence, no  better  solution  could  be  devised.  But 
we  are  far  from  being  able  to  make  that  assumption. 
It  will  be  remembered  that  some  of  the  mines  which 
were  closed  in  the  recent  coal  strike  already  had  in 
operation  such  a  system  of  contracts,  and  that  these 
agreements  were  broken  by  the  laborers.  To  give 
us  a  really  effective  system  of  contract  and  arbitra- 
tion, one  of  two  things  must  happen.  Either  we 
must  have  a  rigid  law  compelling  all  labor  unions 
to  be  incorporated,  and  requiring  them  to  furnish 
adequate  security  for  the  performance  of  their  con- 
tracts ;  or  we  must  educate  the  laborers  themselves 
to  a  higher  sense  of  the  obligation  of  contract  and 
the  necessity  of  carrying  it  out,  even  to  their  own 
apparent  disadvantage. 

Each  of  these  alternatives  involves  us  in  some 
difficulty.  If  we  deny  the  right  of  unincorporated 
bodies  of  laborers  to  make  collective  bargains  for 
their  work,  we  take  away  a  great  deal  of  liberty 
which  already  exists ;  and  this  process  is  always  an 


138        FREEDOM  AND  RESPONSIBILITY 

exceedingly  difficult  one.  We  are  not  situated  as 
we  should  be  if  our  labor  had  previously  been  com- 
pulsory and  we  now,  as  a  concession  in  the  direction 
of  freedom,  allowed  the  laborers  to  make  contracts 
if  they  could  furnish  pecuniary  security  for  their 
performance.  Having  once  left  them  free  to  make 
these  bargains  without  the  restriction,  it  is  going 
to  be  very  difficult  to  reimpose  it  by  statute. 
It  is  almost  equally  hard,  under  the  circum- 
stances, to  add  sacredness  to  the  labor  contract 
in  the  mind  of  the  workman  himself.  A  con- 
tract for  wages  connected  with  future  service  deals 
with  economic  conditions  which  shift  very  rapidly, 
and  afford  continual  grounds  for  demanding  read- 
justment. Sometimes  these  readjustments  are  of  a 
kind  where  the  reasons  for  the  arbitrators'  award 
are  clear;  sometimes  they  are  not.  If  we  have 
taught  the  workman  by  precept  and  example  that 
it  is  his  economic  right  and  duty  to  look  out  for 
himself,  there  is  very  grave  danger  that  under  any 
system  of  arbitration,  however  carefully  guarded, 
he  will  find  sufficient  pretext  to  justify  himself  in 
his  own  mind  for  disregarding  the  award.  Only 
as  part  of  a  general  movement  toward  increased 
sacredness  of  obligations  to  others,  and  diminished 
sacredness  of  the  obligations  of  self-interest,  can  we 
expect  to  see  any  considerable  reform  in  the  work- 


LIMITS  OF  INDIVIDUAL  FREEDOM      139 

man's  conception  of  his  duties  under  wage  contracts 
for  the  future. 

The  second  means  proposed  for  preventing  the 
recurrence  of  difficulties  like  the  anthracite  coal 
strike  is  a  stricter  definition  of  the  laws  of  con- 
spiracy. But  here  we  are  met  by  the  inquiry, 
Which  is  the  conspirator !  The  workman  considers 
the  combination  of  mine  owners  as  an  attempt  to 
establish  a  monopoly  to  the  detriment  of  the  welfare 
of  the  state,  and  regards  the  efforts  of  his  union  to 
organize  the  laborers  as  being  at  the  very  worst  a 
legitimate  effort  to  fight  fire  with  fire.  The  repre- 
sentatives of  the  corporations,  on  the  other  hand, 
see  in  their  own  organizations  responsible  creatures 
of  the  law,  working  under  legal  forms;  while  the 
union  is  to  them  an  intruder,  a  counter-organiza- 
tion without  equal  historical  or  legal  standing,  ar- 
ranged for  the  purpose  of  producing  artificial 
scarcity  of  labor.  Each  party  is  so  occupied  behold- 
ing motes  in  its  brother 's  eye  that  it  is  unable  to  see 
the  beam  which  is  in  its  own  eye,  or  to  take  any 
steps  for  plucking  it  out.  I  very  gravely  doubt  the 
possibility,  under  ordinary  conditions,  of  bringing 
home  either  to  trades  unions  or  to  industrial  cor- 
porations the  guilt  of  conspiracy  against  the  public. 
For  as  long  as  the  public  recognizes  self-interest  as 
a  dominant  motive,  to  be  pursued  to  the  exclusion 


140        FREEDOM  AND  RESPONSIBILITY 

of  other  motives,  so  long  will  it  look  with  toleration 
on  combined  or  organized  acts  of  self-interest,  and 
will  resent  any  demand  to  punish  as  criminal  con- 
spiracies the  organizations  which  perpetrate  them. 
It  is  not  indeed  difficult  to  formulate  a  theory  of 
the  law  of  conspiracy  which  will  allow  us  to  regard 
certain  actions,  which  would  be  innocent  and  proper 
if  they  came  separately,  as  being  wrong  when  done 
in  concert.  Stanley  Jevons,  in  his  book  on  The 
State  in  Relation  to  Labor,  gives  a  good  illustration 
of  this  distinction.  For  a  man  to  walk  through  the 
streets  of  one  of  our  large  cities  is  a  perfectly  inno- 
cent act.  The  street  is  provided  for  this  very  pur- 
pose. But  if  ten  thousand  men  preconcertedly  walk 
through  a  certain  section  of  the  street  at  the  same 
hour  it  becomes  a  public  nuisance ;  and  if  they  have 
arranged  this  action  with  a  view  of  obstructing 
traffic  it  becomes  an  offence  against  the  law.  Never- 
theless it  is  noticeable  that  the  courts  and  the  police 
are  reluctant  to  interfere  with  such  crowds  if  they 
can  possibly  avoid  it ;  and  as  for  punishing  individ- 
ual men  who  are  concerned  in  the  manifestation,  or 
trying  to  make  them  walk  elsewhere,  it  often  seems 
to  transcend  the  power  of  the  state.  It  can  be  done 
in  monarchies,  but  at  the  cost  of  great  unrest.  In 
democracies  it  can  hardly  be  done  at  all ;  for  we  are 
very  reluctant  to  punish  men  for  a  thing  in  groups 


LIMITS  OF  INDIVIDUAL  FREEDOM      141 

which  we  do  not  consider  bad  when  done  by  in- 
dividuals. 

Any  real  reform  in  conspiracy  law  must  come 
from  a  new  conception  of  public  responsibility. 
The  readiness,  either  on  the  part  of  capitalist  or 
laborer,  to  sacrifice  the  consumers'  interests  to  his 
own,  is  itself  morally  bad.  The  prevalence  of  com- 
petition has  permitted  this  truth  to  fall  into  the 
background,  because  it  prevents  the  development 
of  this  evil  possibility  among  persons  of  ordinary 
intelligence.  Combination  permits  and  encourages 
the  evil,  unless  those  who  control  the  combination 
are  more  clear-headed  than  the  average  of  mankind. 
Taking  business  as  we  find  it,  and  human  intelli- 
gence as  we  fimd  it,  we  need  some  new  standards 
of  business  morals  in  order  to  prevent  industrial 
monopoly  from  degenerating  into  industrial  con- 
spiracy. If  we  stop  short  of  this  higher  conception 
of  industrial  responsibility,  and  continue  to  hold 
to  the  idea  of  self-interest  as  a  paramount  industrial 
good,  we  cannot  effectively  deal  with  the  abuses  of 
monopoly,  because  we  shall  be  simply  attempting  to 
punish  someone  else  for  doing  effectively  on  a  large 
scale  what  we,  on  our  own  part,  have  been  trying 
to  do  much  less  effectively  on  a  small  one.  But  if 
we  can  really  go  to  the  root  of  the  matter  by  chang- 
ing our  standards,  we  can  establish  a  theory  of  con- 


142        FREEDOM  AND  RESPONSIBILITY 

spiracy  which  we  shall  not  be  afraid  to  put  to  the 
test  of  practice. 

The  third  means  suggested  to  avoid  the  recur- 
rence of  dangers  like  that  of  the  anthracite  coal 
strike  is  the  direct  control  and  operation  of  produc- 
tive industry  by  the  government — in  other  words, 
a  system  of  socialism. 

This  would  doubtless  modify  very  greatly  the 
form  which  our  conflicts  would  take ;  but  it  is  by  no 
means  easy  to  prove  that  these  conflicts  would  be 
wholly  avoided  thereby.  Indeed,  with  democracies 
managed  as  they  are  at  present,  where  one  district 
is  pitted  against  another,  each  seeking  its  own  sec- 
tional interests;  or  where  president  stands  on  one 
side  and  congressman  on  another,  each  ready  to  face 
the  dangers  of  a  deadlock  for  the  sake  of  the  policy 
which  he  and  those  behind  him  represent ;  the  dan- 
ger of  disregard  of  public  needs  in  the  pursuit  of 
private  interests  would  be  increased  rather  than 
diminished.*      The    more    intelligent    among    the 

*  A  failure  to  act  responsibly  in  handling  a  public  corporation 
is  not  brought  home  to  the  managers  as  directly  as  a  similar 
failure  is  brought  home  in  the  case  of  an  ordinary  private  cor- 
poration or  of  an  incorporated  labor  organization.  When  a  so- 
cialistic experiment  fails,  the  leader  may  be  in  some  degree  dis- 
credited ;  but  the  loss  is  so  distributed  over  the  whole  body  of 
the  taxpayers,  some  of  whom  are  probably  the  very  ones  who 
opposed  the  experiment  from  the  first  and  are  least  responsible 


LIMITS  OF  INDIVIDUAL  FREEDOM      143 

socialists  recognize  the  danger  of  this  sort  of  dead- 
lock and  conflict  as  government  is  managed  at 
present ;  and  they  say  that  one  of  the  benefits  which 
they  seek  in  giving  additional  powers  to  government 
is  that  it  will  compel  people,  in  mere  self-defence, 
to  be  more  accurate  in  watching  the  details  of  its 
management.  But  the  difficulty  of  exercising  effec- 
tive oversight  under  such  conditions  is  very  great 
indeed;  and  the  chance  for  an  outside  observer  to 
secure  protection  to  public  interests  is  even  smaller 
than  at  present.  For  under  present  conditions  the 
state  comes  in  as  an  independent  authority  and 
checks  the  property  owners  if  they  go  too  far ;  but 
under  a  socialistic  system,  if  once  a  ring  came  into 
power  it  would  control  politics  and  industry  alike, 
and  there  would  be  no  outside  means  of  checking 
it  except  through  the  agency  of  revolution.  If  we 
grant  that  a  socialistic  state  is  managed  by  citizens 
who  subordinate  their  own  interests  to  the  common 
interest,  and  hold  their  power  as  a  public  trust, 
most  of  the  evils  under  which  we  now  suffer  would 

for  its  failure,  that  the  lesson  is  not  brought  home  as  it  should 
be.  In  fact,  there  is  danger  that  the  distribution  of  these  bur- 
dens on  the  responsible  and  irresponsible  alike  ■will  teach  ex- 
actly the  wrong  lesson,  and  lead  people  to  think  that  power  and 
freedom  are  privileges  to  be  grasped  by  those  who  can  get  them, 
rather  than  trusts  to  be  administered  by  those  who  can  furnish 
the  community  security  for  their  responsible  exercise. 


144        FREEDOM  AND  RESPONSIBILITY 

be  avoided.  But  so  they  would  under  the  present 
conditions  of  capitalistic  enterprise  if  we  had  this 
habitual  exercise  of  public  spirit  and  recognition 
of  public  obligation.  Without  this  spirit  neither 
the  restraint  of  conspiracy  law  nor  the  application 
of  public  ownership  will  go  to  the  heart  of  the  diffi- 
culty. So  far  as  the  development  of  private  prop- 
erty helps  to  make  people  recognize  public  obliga- 
tions, it  is  a  good  thing.  So  far  as  the  extension  of 
a  system  of  contracts  to  labor  disputes  can  help  it, 
it  will  be  a  good  thing.  And,  so  far  as  socialism  can 
help  it,  socialism  will  be  a  good  thing.  But  modern 
socialism  tends  to  get  at  this  matter  from  the  wrong 
end.  It  relies  too  much  on  mere  machinery  and  too 
little  on  the  force  which  is  behind  it.  It  is  an 
attempt  to  use  collective  power  for  individual  hap- 
piness, when  what  we  want  is  an  attempt  to  enlist 
individual  power  in  the  interest  of  collective 
happiness. 

It  seems  as  if  a  man's  preferences  between  indi- 
vidualism and  socialism  were  generally  determined 
not  on  the  basis  of  principle  but  on  the  basis  of 
personal  interest.  His  opinion  on  matters  like  pub- 
lic control  and  ownership  of  corporations  is  not  so 
much  influenced  by  an  intelligent  study  of  the 
relative  effect  of  these  two  methods  upon  public 
service  and  public  convenience  as  upon  the  basis 


LIMITS  OF  INDIVIDUAL  FREEDOM      145 

of  its  relation  to  his  own  industrial  power.  If  he 
is  a  rich  man,  and  controls  more  money  than  votes, 
he  is  likely  to  be  in  favor  of  private  management. 
If  he  is  a  poor  man,  and  controls  relatively  more 
votes  than  money,  he  is  likely  to  be  in  favor  of 
public  action.  He  prefers  the  form  which  gives  to 
him  individually,  and  to  those  situated  like  him, 
relatively  greater  means  of  making  their  voices 
heard,  without  having  taken  the  trouble  to  assure 
himself  that  the  things  which  he  and  his  friends  can 
say  will  really  contribute  to  the  best  interests  of  the 
community. 

It  has  been  one  of  the  unfortunate  results  of  the 
industrial  progress  of  the  nineteenth  century  that 
our  standards  of  public  morals  have  been,  so  to 
speak,  commercialized, — that  we  value  things  on  a 
money  basis,  whether  they  are  of  a  kind  that  ought 
to  be  bought  and  sold  or  not,  and  measure  a  man's 
position  not  by  service  which  he  has  been  able  to  do 
his  fellow  men  so  much  as  by  the  extent  to  which 
he  has  been  able  to  compel  them  to  render  him  a 
return.  I  am  afraid  that  nine-tenths  of  the  world 
rates  the  inventor  or  scientific  discoverer  who  has 
rendered  a  public  service  lower  than  the  patentee 
who  has  succeeded  in  making  the  public  pay  him 
for  it.  And  this  character  of  our  standards  would 
not  be  essentially  altered  by  the  transfer  of  indus- 


146        FREEDOM  AND  RESPONSIBILITY 

try  to  the  hands  of  government  officials,  as  some  of 
the  socialists  think.  We  should  be  measuring  a 
man's  value  by  his  control  of  votes  instead  of  his 
control  of  dollars.  So  long  as  this  spirit  prevails 
we  shall  be  subject  in  an  extreme  form  to  those 
political  dangers  described  in  the  first  lecture.  We 
shall  see  government  take  the  shape  of  organized 
efforts  to  use  the  resources  of  the  community  as  a 
whole  for  the  interest  of  some  larger  or  smaller 
part  thereof.  We  shall  see  the  spirit  of  trusteeship 
sink  into  abeyance,  and  be  replaced  by  the  spirit  of 
appropriation  for  selfish  or  local  or  short-sighted 
ends.  While  these  standards  prevail  and  these  con- 
ditions last,  it  seems  difficult  to  expect  any  real  pre- 
ventive of  disastrous  internal  conflict.  Each  new 
complexity  in  our  organization  of  industry,  and 
each  extension  of  the  functions  of  government 
which  puts  the  individual  into  contact  with  his 
fellows  at  more  points  than  he  had  a  generation  ago, 
simply  intensifies  the  evil  and  necessitates  some 
really  radical  step  toward  its  cure.  In  industry 
and  in  politics  alike  we  must  get  back  to  the  con- 
ception of  some  higher  motive  than  self-interest  and 
some  better  measure  of  value  than  self-aggrandize- 
ment. 

Man,  as  Aristotle  has  well  said,  is  a  political 
animal.     His  power  of  forming  communities,   in 


LIMITS  OF  INDIVIDUAL  FREEDOM      147 

which  the  individual  shall  be  subordinated  to  the 
interests  of  the  group,  is  one  of  his  most  distinctive 
qualities.  His  power  of  forming  free  communities, 
in  which  each  individual  shall  by  his  own  judgment 
direct  his  efforts  to  a  public  end,  is  a  characteristic 
yet  more  distinctive ;  and  this  form  of  social  organi- 
zation gives  him  his  greatest  strength.  But  if  self- 
government  is  not  used  enough  to  promote  the  re- 
sources of  a  community  as  a  whole,  but  to  divert 
those  resources  into  individual  channels,  it  becomes 
a  source  of  weakness  instead  of  strength — whether 
that  weakness  come  in  the  form  of  enervation,  as 
in  Greece  and  Italy,  or  of  incapacity  for  discipline, 
as  in  Poland,  or  of  ambition  and  misdirected  or- 
ganization, as  in  France  under  the  old  regime. 

We  have  traced  step  by  step  the  lesson  that  free- 
dom, moral,  civil,  religious,  or  industrial,  is  success- 
fully given  only  in  connection  with  the  assumption 
of  responsibility.  It  is  for  us  to  see  that  this  present 
counter-current  in  the  stream  of  our  progress,  which 
leads  some  to  claim  the  privileges  of  freedom  with- 
out assuming  its  responsibilities,  be  only  momen- 
tary ;  and  to  insist  on  the  duty  of  American  citizens 
to  accept  the  lessons  of  history  and  the  responsibili- 
ties of  freedom.  If  the  thinking  men  of  the  country 
really  take  this  view  of  the  matter  and  carry  it  out 
even  when  it  works  to  their  own  burden  and  detri- 


148        FREEDOM  AND  RESPONSIBILITY 

ment,  the  unthinking  men  will  follow.  There  are 
fashions  in  reasoning,  as  well  as  in  everything  else ; 
and  those  who  can  take  the  lead  are  given  the  lead. 
If  they  neglect  this  opportunity  to  give  the  right 
direction  to  thought,  theirs  will  be  the  responsibility 
for  the  succession  of  political  failures  which  must 
ensue.  But  if  they  insist,  for  themselves  first,  and 
by  their  example  for  others,  that  freedom  shall  be 
prized  as  a  means  of  public  service;  that  wealth 
shall  be  valued,  and  valued  only,  as  an  indication 
of  services  performed  in  the  past  and  of  the  power 
to  do  similar  service  in  the  future ;  that  public  office 
is  a  public  trust  for  the  same  end ;  then,  and  not  till 
then,  may  we  claim  for  our  American  democracy 
the  merit  of  having  solved,  so  far  as  human  fore- 
sight can  see,  the  problem  of  combining  the  liberty 
of  the  individual  with  the  promotion  of  the  public 
good. 

In  the  centuries  immediately  past  we  have  had 
to  deal  with  the  problem  of  securing  liberty.  To« 
day  we  have  to  face  the  problem  of  preserving  it. 
It  is  a  great  mistake  to  assume  that  the  problem  of 
today  is  the  easier  of  the  two.  The  hardships  and 
dangers  connected  with  it  are  less  tangible ;  but  they 
are  on  that  account  all  the  more  difficult  to  assume. 
We  no  longer  have  to  face  the  peril  of  the  scaffold  or 
the  privation  of  the  revolutionary  camp ;  but  we 


LIMITS  OF  INDIVIDUAL  FREEDOM      149 

have  to  face  and  accept  the  peril  and  privation  of 
imposing  upon  ourselves  standards  of  conduct 
higher  and  duties  more  burdensome  than  those 
which  we  have  hitherto  recognized  either  in  law  or 
morals.  Freedom  has  always  required  the  exercise 
of  courage  to  defend  it  from  the  assaults  of  its 
adversaries.  It  today  requires  the  exercise  of  pub- 
lic spirit  and  personal  self-restraint  to  guard 
against  the  excesses  of  those  who  deem  themselves 
to  be  its  friends.  Only  by  the  acceptance  of  this 
widened  sense  of  responsibility  and  by  the  growth 
of  this  public  spirit  can  we  hope  that  the  freedom, 
so  laboriously  wrought  out  in  the  centuries  past, 
may  be  successfully  preserved  through  those  to 
come. 


VII 

THE   OUTLOOK   FOR   THE   FUTURE. 

For  the  successful  conduct  of  the  affairs  of  a  free 
people  two  things  are  necessary:  an  organization 
which  enables  each  man  to  use  his  powers  for  the 
benefit  of  himself  and  his  fellows  with  only  the 
minimum  of  necessary  interference;  and  a  spirit 
among  the  individual  members  of  the  community 
which  will  lead  them  to  take  the  responsibility 
which  goes  with  this  method  of  organization,  and 
to  make  good  use  of  it. 

Each  of  these  things  is  important  in  its  way,  but 
the  second  is  the  one  which  we  need  to  watch  more 
closely.  The  machine  and  the  force  that  drives  it 
are  both  essential  to  the  doing  of  work ;  but  a  bad 
machine  with  plenty  of  power  will  usually  accom- 
plish better  results  than  a  good  machine  with  in- 
adequate power.  If  there  is  a  proper  spirit  of 
political  responsibility,  defects  in  the  social  organi- 
zation will  be  made  good.  If  there  is  not  this  spirit 
on  the  part  of  the  citizens,  no  machinery,  however 
well  devised,  can  be  trusted  to  run  continuously. 
150 


THE  OUTLOOK  FOR  THE  FUTURE      151 

A  few  years  ago  the  agent  of  a  manufacturing 
company  received  a  visit  from  a  man  who  desired  to 
buy  a  pump  which  should  provide  for  the  watering 
of  his  stock.  When  the  agent  inquired  where  he 
was  to  get  the  power  to  drive  the  machine,  the 
visitor  replied  that  he  proposed  to  put  in  an  instru- 
ment large  enough  to  pump  not  only  the  water 
which  he  needed  for  his  cattle,  but  an  additional 
supply  sufficient  to  run  the  machine  itself.  When 
he  was  told  that  this  was  impossible  he  expressed 
great  disappointment.  "It  seems  as  though  you 
ought  to  be  able  to  do  this  for  me, ' '  he  said.  "  I  am 
prepared  to  put  a  good  deal  of  capital  into  this 
machine."  We  smile  at  the  simplicity  of  a  man 
who  makes  such  a  demand  on  our  mechanicians; 
and  yet  it  is  paralleled  every  day  in  the  writings 
and  teachings  of  social  reformers.  They  have  a 
feeling  that  if  the  political  mechanism  were  only 
good  enough  it  would  relieve  them  of  the  responsi- 
bility of  running  it — would,  in  short,  furnish  its 
own  power.  This  misconception  is  not  confined  to 
professional  reformers.  It  is  reflected  in  the  mental 
attitude  of  a  large  part  of  our  citizens.  They  think 
that  it  is  the  business  of  constitutional  lawyers  to 
devise  a  government  which  shall  give  us  the  utmost 
freedom,  and  at  the  same  time  reduce  our  share  in 
the  actual  work  of  running  it  to  a  minimum.    They 


152        FREEDOM  AND  RESPONSIBILITY 

not  only  tolerate  but  encourage  the  use  in  our 
schools  of  text-books  on  civics  which  lay  stress  on 
the  description  of  administrative  details,  and  say 
almost  nothing  of  the  force  of  public  opinion — 
which  tell  much  of  the  methods  of  voting  and  the 
organization  of  legislative  assemblies,  but  give  no 
hint  of  the  fact  that  a  voter  must  be  prepared  to 
subordinate  his  own  interests  to  those  of  the  body 
politic,  and  a  legislator  to  prefer  the  good  of  the 
country  to  the  good  of  his  district,  if  our  republic 
is  to  continue  a  really  free  state.  We  are  losing 
sight  of  the  lessons  of  history  as  it  used  to  be  taught 
in  the  old-fashioned  days.  There  is  an  appreci- 
able danger  that  modern  methods  in  the  study  of 
politics  will  give  us  little  of  what  we  need  to  learn 
concerning  the  real  spirit  which  makes  nations 
great. 

As  far  as  the  mechanism  of  our  social  organiza- 
tion goes,  we  have  no  reason  to  complain  of  our  lot. 
The  family,  the  church,  the  school,  not  to  speak  of 
other  less  important  agencies,  provide  for  the  devel- 
opment of  sound  personal  relations.  The  complex 
agencies  for  the  production  and  sale  of  goods — the 
market,  the  exchanges,  and  the  banking  system — 
provide  the  necessary  framework  for  our  industrial 
relations.  Government,  local,  state,  and  national, 
in  its  various  branches  provides  a  means  for  the 


THE  OUTLOOK  FOR  THE  FUTURE      153 

ordering  of  our  political  relations.  We  may  at 
times  have  occasion  to  complain  of  the  way  in  which 
the  different  parts  of  this  mechanism  work.  One 
man  thinks  that  the  teaching  in  the  schools  is  bad ; 
another  complains  that  the  banks  do  not  furnish 
an  elastic  currency;  a  third  criticises  the  rules 
which  govern  the  action  of  the  United  States  Con- 
gress. But  these  are  mere  details — ^unimportant 
defects  in  a  complex  piece  of  machinery  which  is 
the  product  of  ages  of  experience,  and  which  is  on 
the  whole  well  adapted  to  the  work  in  hand.  Let 
us  turn  our  attention  to  that  more  important  part 
of  our  inquiry  which  deals,  not  with  the  character 
of  the  machine,  but  with  the  way  in  which  it  is 
managed.  Let  us  inquire  in  what  spirit  and  by 
what  power  we,  as  individual  citizens,  undertake 
to  operate  this  vast  social  organization.  It  is  de- 
vised to  give  us  the  power  of  governing  ourselves. 
Do  we  take  the  opportunity  which  it  gives  us,  and 
actually  exercise  the  privilege  of  self-government 
in  a  way  to  preserve,  instead  of  jeopardizing,  this 
social  structure  ? 

So  far  as  concerns  our  personal  relations,  it  can 
be  safely  said  that  we  do.  In  our  dealings  with  our 
families,  our  relatives,  and  our  friends,  we  use  our 
freedom  not  for  the  sake  of  self-aggrandizement, 
but  as  a  means  of  giving  pleasure  to  those  about  us. 


154        FREEDOM  AND  RESPONSIBILITY 

We  have  learned  to  restrain  our  passions,  not  be- 
cause somebody  else  compels  us  to,  but  as  a  matter 
of  courtesy  and  self-respect.  We  have  learned  to 
consult  others'  happiness,  not  on  grounds  of  calcu- 
lation but  on  grounds  of  affection.  We  have 
trained  ourselves,  and  have  by  our  example  been 
able  to  train  others,  in  a  system  of  personal  morality 
where  murder  and  robbery  are  almost  unknown  and 
where  on  an  increasing  scale  chastity  takes  the  place 
of  license,  courtesy  moderates  passion,  and  friendly 
devotion  overcomes  the  temptations  of  indolence. 
Amid  changes  of  religious  belief  we  have  preserved 
these  habits,  not  only  undiminished  but  actually 
increased;  so  that  these  parts  of  our  morality  no 
longer  require  the  supernatural  terrors  of  religion 
to  enforce  them,  but  are  cheerfully  assumed  as  vol- 
untary duties  toward  our  fellow  men,  in  which  the 
fear  of  future  punishment  counts  for  no  more  than 
the  fear  of  the  policeman.  There  are,  indeed,  points 
at  which  our  personal  morality  is  subject  to  a  cer- 
tain degree  of  danger.  The  increasing  laxity  of 
divorce,  for  instance,  is  thought  by  some  to  menace 
that  acceptance  of  personal  responsibility  for  the 
training  of  children  which  the  old-fashioned  view 
of  the  marriage  contract  so  properly  emphasized. 
But  after  making  ail  possible  exceptions,  it  is  fair 
to  say  that  in  this  twentieth  century  men  and  worn- 


THE  OUTLOOK  FOR  THE  FUTURE      155 

en  in  their  personal  relations  assume  a  full  measure 
of  that  responsibility  which  is  necessary  to  the  ex- 
ercise of  freedom. 

In  industrial  relations  the  case  is  different.  In 
those  things  which  people  regard  as  matters  of  busi- 
ness, the  community  relies  on  self-interest  to  take 
the  place  of  self-government.  Of  course  we  do  not 
carry  this  pursuit  of  self-interest  to  a  point  where 
it  would  violate  our  code  of  personal  morality.  We 
do  not  tolerate  the  ordinary  and  commonplace 
forms  of  lying  and  cheating.  "We  do  not  use  our 
commercial  power  to  oppress  individuals  whom  we 
know.  We  do  not  commit  serious  breaches  of  trust 
where  the  interests  of  some  specific  person  have  been 
placed  in  our  charge.  Commercial  society  would 
not  tolerate  any  of  these  things;  and  even  if  it 
did,  our  own  instincts  of  personal  morality  would 
prevent  us  from  doing  them.  But  when  the  per- 
sonal relation  does  not  come  so  prominently  into  the 
foreground;  when  the  people  who  are  injured  by 
our  conduct  are  not  certain  definite  persons  whom 
we  see,  but  an  unknown  and  indefinite  body  which 
we  do  not  see;  when  we  lay  our  plans  to  deceive, 
not  some  specific  individual  or  group  of  individuals, 
but  large  sections  of  the  public;  when  the  trust 
which  we  are  exercising,  and  which  we  have  it  in 
our  power  to  break,  is  not  in  the  name  of  some 


156        FREEDOM  AND  RESPONSIBILITY 

specific  ward,  but  on  behalf  of  a  general  body  of 
stockholders  or  bondholders — then  our  standards 
are  much  less  satisfactory.  Many  a  man  who  would 
despise  a  grocer  for  using  false  measures  in  selling 
commodities  will  himself  use  false  measure  in  sell- 
ing securities.  He  deems  it  wrong  to  water  milk, 
and  right  to  water  stock.  He  will  not  deceive  an 
individual,  but  he  has  no  scruples  about  deceiving 
the  investing  public.  Nor  are  the  men  who  indulge 
in  those  practices  to  be  so  severely  blamed  as  would 
appear  at  first  sight.  If  you  could  properly  bring 
the  blame  home  to  the  men  you  could  stop  the  prac- 
tice; for  no  man  who  is  ambitious  for  real  leader- 
ship in  a  community  is  going  to  do  things  which 
the  conscience  of  that  community  can  condemn. 
The  blame  rests  upon  the  people  as  a  whole.  The 
commercial  public  has  seen  so  much  good  arising 
from  competition  that  it  has  come  to  rely  upon  this 
as  a  means  of  checking  the  evil  effects  of  individual 
selfishness,  and  to  regard  it  as  far  more  power- 
ful and  universal  than  it  really  is.  It  has  come 
to  consider  business  as  a  game,  to  be  played  by 
each  man  in  his  own  interest,  subject  to  certain 
well  defined  rules  or  conventions  of  business  life, 
but  involving  no  special  obligations  outside  of 
those  rules.  The  public  has  assumed  that  if  each 
man  played  this  game  fairly,  with  a  view  to  secur- 


THE  OUTLOOK  FOR  THE  FUTURE      157 

ing  all  he  could  for  himself,  the  general  interests 
of  industry  and  commerce  would  be  well  sub- 
served. 

We  are,  I  think,  beginning  to  be  dissatisfied  with 
this  view  of  commercial  ethics;  and  I  regard  this 
growing  dissatisfaction  as  one  of  the  most  fortunate 
signs  of  the  times.  We  are  beginning  to  recognize 
that  it  is  not  enough  to  insist  that  the  game  of  busi- 
ness should  be  played  fairly,  or  to  modify  the  ethics 
of  that  play  by  personal  sentiment  in  those  cases 
where  we  see  the  individual  injury  done,  and  those 
alone.  We  are  recognizing  that  business  is  some- 
thing more  than  a  game  which  each  man  can  play 
to  win.  In  its  modern  shape  commercial  business 
for  all  its  leaders  represents  a  trust.  I  do  not,  of 
course,  mean  that  it  has  become  subject  to  that 
particular  form  of  consolidation  which  the  name 
trust  at  first  sight  suggests.  Some  of  our  corporate 
business  is  of  that  form;  a  far  larger  part  is  not. 
But,  whatever  be  its  external  form  or  arrangement, 
its  essential  character  is  that  the  interests  of  a 
great  number  of  people  are  entrusted  to  the  hands 
of  a  president  and  board  of  directors.  Upon  the 
sagacity  of  this  president  and  these  directors  de- 
pends the  prosperity  of  hundreds  of  investors, 
thousands  of  operatives,  and  perhaps  millions  of 
consumers.     If  these  men  manage  that  trust  pri- 


158        FREEDOM  AND  RESPONSIBILITY 

marily  for  their  own  interests,  instead  of  for  the 
interests  of  those  whom  they  represent,  it  always 
results  in  evil,  and  sometimes  in  disaster.  We  can- 
not rely  upon  competition  to  prevent  these  conse- 
quences. Where  it  acts  regularly  and  smoothly  it 
may  do  a  great  deal  toward  preventing  them ;  but 
the  cases  where  competition  acts  smoothly  and  regu- 
larly are  the  exception  rather  than  the  rule  in  the 
large  industries  of  the  present  day.  Nor  will  the 
law  reach  these  evils — at  least  until  the  community 
has  modified  its  moral  conceptions  as  well  as  its 
legal  ones.  A  law  which  attempts  to  do  more  than 
the  moral  sense  of  the  community  really  desires, 
and  which  undertakes  to  punish  corporations  for 
doing  on  a  large  scale  things  which  people  tolerate 
when  done  on  a  smaller  scale,  will  inevitably  become 
a  dead  letter. 

One  essential  feature  of  a  trust  is  that  those  to 
whom  it  is  given  have  a  discretionary  power  for 
good  or  evil.  The  law  cannot  prescribe  exactly 
what  they  shall  do  and  punish  all  deviations 
from  the  lines  thus  prescribed.  It  leaves  them  free 
to  use  their  power  well  or  ill,  subject  to  the  control 
of  their  own  consciences  and  the  moral  sense  of  the 
community.  In  this  sense  modern  industrial  com- 
binations are  most  clearly  trusts.  The  means  of 
providing  for  their  proper  exercise  are  moral  ones. 


THE  OUTLOOK  FOR  THE  FUTURE      159 

The  force  of  public  opinion  is  the  one  really  effec- 
tive agency  in  this  matter. 

The  improvement  in  the  relations  of  directors  to 
investors  which  was  effected  in  the  course  of  the 
nineteenth  century  was  not  primarily  nor  chiefly 
due  to  changes  in  the  statutes.  It  was  due  to 
changes  of  public  opinion  in  the  business  world. 
These  changes  started  from  men  who  were  not  al- 
ways the  wealthiest,  but  whose  reputation  and  char- 
acter enabled  them  to  impose  upon  others  whatever 
standards  they  voluntarily  enforced  upon  them- 
selves. Men  do  not  as  a  rule  desire  money  for  its  own 
sake.  They  desire  it  for  the  sake  of  the  consideration 
which  it  brings.  If  the  making  of  money  by  ques- 
tionable methods  causes  them  to  receive  less  con- 
sideration than  they  otherwise  would  from  people 
whose  judgment  they  respect,  they  will  abandon 
those  methods. 

The  reforms  in  the  relations  of  directors  to  the 
public  represent  only  a  beginning  of  what  we  need ; 
but  the  fact  that  a  beginning  has  been  made  shows 
that  we  have  means  of  reform  at  command,  if  only 
we  will  use  them.  There  are  indications  that  we  are 
going  to  use  them  more  than  we  have  done  hitherto. 
There  are  signs  of  a  demand  for  an  increased  recog- 
nition of  the  principle  of  trusteeship  in  the  hand- 
ling of  wealth.    Those  events  which  for  the  moment 


160        FREEDOM  AND  RESPONSIBILITY 

seem  most  disastrous — fluctuations  in  the  value  of 
investments,  and  strikes  which  involve  stoppage  of 
production  and  commerce — bring  home  to  the  peo- 
ple the  fact  that  our  industrial  system  does  not 
serve  society  as  well  as  we  supposed ;  that  if  these 
things  grow  much  worse  the  time  may  come  when 
it  will  be  put  on  trial  for  its  life ;  and  that  we  must 
seriously  set  to  work  toward  its  betterment.  Of 
course  nine-tenths  of  the  schemes  proposed  for  such 
betterment  are  impracticable,  or  worse.  The  men 
who  are  most  ready  to  suggest  panaceas  are  usually 
the  ones  who  know  least  of  the  difficulties  of  the 
case.  But  we  have  it  in  our  power  to  carry  out  a 
slow  but  thorough  reform  of  industrial  relations  if 
we  simply  keep  this  conception  in  view:  that  the 
amount  of  money  made  in  business  does  not  repre- 
sent the  real  measure  of  a  man 's  business  power  or 
business  achievement.  Our  ethical  standards  in  re- 
cent years  have  led  us  to  place  too  high  a  valuation 
upon  success  in  money-making  as  a  test  of  a  man 's 
commercial  and  industrial  efficiency.  Money,  after 
all,  is  but  a  tool  of  trade.  It  is  an  important  means 
of  service  to  society;  and  its  possession  or  control 
may  be  important  evidence  that  a  man  has  rendered 
such  service.  But  if  we  regard  money  as  an  end 
instead  of  a  means,  or  confound  the  evidence  of  suc- 
cess with  the  success  itself,  we  have  made  a  most  se- 


THE  OUTLOOK  FOR  THE  FUTURE      161 

rious  mistake  in  the  arrangement  of  our  standards. 
If  a  man  gets  money  in  ways  which  prove  injurious 
to  society  instead  of  beneficial,  this  furnishes  no 
more  reason  for  giving  him  social  consideration 
than  it  does  in  the  case  of  the  burglar  or  forger  who 
has  managed  to  escape  state 's  prison  by  a  technical- 
ity of  the  law.  If  men  of  good  character,  business 
sense,  and  clear-headed  ethics  can  insist  upon  the 
duty  of  rendering  continuous  service  to  the  public 
at  reasonable  rates,  and  by  methods  which  prevent 
disastrous  fluctuations  in  the  value  of  securities, 
and  regard  wealth  which  is  made  by  a  sacrifice  of 
these  standards  as  prima  facie  evidence  of  moral 
weakness  rather  than  of  industrial  power,  the  prob- 
lem will  be  solved.  I  believe  that  there  is  no  other 
way  to  its  solution ;  and  that  in  the  present  temper 
of  the  American  people  and  the  present  power  of 
public  opinion,  there  is  a  very  strong  hope  of  mak- 
ing progress  toward  a  solution  on  the  lines  here 
suggested. 

Passing  from  industry  to  politics,  we  still  find  the 
same  tendency  to  rely  on  self-interest — not  so  open- 
ly, perhaps,  as  in  industrial  life,  but  to  a  degree 
which  involves  the  community  in  very  considerable 
danger.  Our  system  of  commercial  ethics  has  had 
a  strong  effect  on  our  system  of  political  ethics.    I 


162        FREEDOM  AND  RESPONSIBILITY 

suspect  that  in  ordinary  times  voters,  so  far  as  they 
do  any  thinking  at  all,  are  guided  by  personal  con- 
siderations more  than  by  public  ones — especially 
when  matters  are  under  discussion  which  are  not 
party  measures.  And  what  is  true  of  voters  is  true 
of  their  representatives.  The  congressman  is  more 
closely  busied  about  the  interests  of  his  district  than 
about  the  interests  of  the  public  at  large.  Indeed, 
he  will  tell  you  frankly  that  when  every  other  con- 
gressman is  pushing  the  claims  of  his  locality  and 
his  friends,  it  would  cause  confusion  rather  than 
advantage  if  he  alone  should  sacrifice  local  and  per- 
sonal interests  for  those  of  the  commonwealth.  He 
would  be  in  such  a  hopeless  minority  that  he  could 
accomplish  little  for  the  nation  as  a  whole,  and 
would  simply  prevent  his  constituents  from  getting 
an  equitable  share  of  the  benefits  of  government. 
Where  voters  and  their  representatives  are  actuated 
by  considerations  like  these,  it  is  inevitable  that  pol- 
itics should  be  regarded  as  a  game  in  the  same  sense 
that  business  is  regarded  as  a  game.  It  will  be 
characterized  by  effort  on  the  part  of  individuals  to 
advance  their  own  interests,  in  the  complacent  be- 
lief that  somehow  or  other,  in  the  general  scramble 
of  a  large  number  of  men  working  in  different 
directions,  no  great  unfairness  can  result  in  the 
long  run.     I  do  not  mean  that  this  theory  is  as 


THE  OUTLOOK  FOR  THE  FUTURE      163 

universally  accepted  in  politics  as  it  has  been  in 
business.  A  large  number  of  men  go  into  politics 
with  the  intent  of  serving  the  public  first,  their 
friends  next,  and  themselves,  in  any  selfish  fashion, 
not  at  all.  But,  with  general  conditions  and  gen- 
eral standards  of  political  ethics  as  they  exist  at 
present,  the  difficulty  of  living  up  to  this  conception 
is  very  great. 

In  all  these  matters  the  analogy  between  indus- 
trial and  political  ethics  is  very  close  indeed.  In 
our  industrial  ethics,  we  have  come  to  regard  the 
making  of  money  as  the  test  of  power  and  the  object 
of  ambition.  In  our  political  ethics  we  regard  the 
control  of  votes  and  the  offices  which  they  bring  as 
furnishing  a  similar  test.  When  once  this  standard 
is  accepted,  and  this  conception  of  politics  as  a  game 
becomes  universal,  there  is  a  tendency  even  on  the 
part  of  the  best  men  to  look  with  leniency  on  all 
means  tolerated  by  the  rules  of  the  game  for  secur- 
ing votes  necessary  to  nominate  and  elect  a  man  to 
office ;  and  to  regard  as  quixotic  the  views  of  those 
who  insist  on  the  moral  duty  of  sacrificing  votes  for 
the  sake  of  convictions.  It  is  not  the  office-seekers 
who  are  primarily  to  blame,  but  the  community  as 
a  whole,  because  its  general  system  of  political 
ethics  makes  it  difficult  for  a  good  man  to  pursue 
high  standards  without  sacrificing  his  chances  for 
political  efficiency. 


164        FREEDOM  AND  RESPONSIBILITY 

We  see  a  great  many  attempts  to  meet  this  evil 
by  superficial  remedies.  Some  persons  believe  that 
much  can  be  accomplished  by  independent  voting. 
They  say  that  if  there  is  a  group  of  electors  who, 
instead  of  being  attached  to  a  particular  party, 
will  vote  for  the  candidates  who  represent  higher 
principles  and  better  methods,  politicians  will  be 
compelled  to  advocate  good  measures  and  nominate 
good  officers.  The  men  who  hold  this  view  are 
trying  to  apply  the  principle  of  competition  to 
political  affairs.  They  would  let  the  persons  who 
desire  to  hold  office  compete  for  the  votes  of  those 
who  do  not.  In  local  affairs  this  habit  of  non-par- 
tisan voting  has  become  far  more  general  than  it 
once  was,  and  has  on  the  whole  had  distinctly  good 
effects.  '  *  We  are  occasionally  compelled  to  pander 
to  the  moral  sense  of  the  community, ' '  said  an  old- 
time  politician,  regretfully,  as  he  surveyed  the  fig- 
ures of  an  independent  vote  at  a  local  election.  But 
the  importance  of  parties  in  the  actual  work  of 
government  in  the  United  States  renders  it  difficult 
to  adopt  a  theory  of  politics  which  places  the  most 
intelligent  and  independent  voters  outside  of  the 
framework  of  party  organization,  and  thus  for  the 
sake  of  an  occasional  influence  at  elections  deprives 
them  of  the  continuous  influence  within  the  councils 
of  the  party  which  they  ought  to  have,  and  other- 
wise would  have. 


THE  OUTLOOK  FOR  THE  FUTURE      165 

Another  remedy  proposed  is  exactly  the  reverse 
of  this.  It  is  suggested  that  there  should  be  a 
greater  participation  of  good  men  in  the  direct 
business  of  politics.  It  is  urged  that  the  men  who 
have  an  interest  in  good  government  are  more 
numerous  than  those  who  have  an  interest  in  bad 
government,  and  that  it  is  the  fault  of  these  men  if 
they  do  not  make  their  influence  felt.  To  a  certain 
extent  this  point  is  well  taken.  Readiness  on  the 
part  of  disinterested  men  to  accept  the  burdens  of 
public  service  is  always  salutary.  But  until  we  get 
some  better  conceptions  of  political  ethics  than  we 
now  have,  the  amount  which  can  be  accomplished 
in  this  way  is  small  in  proportion  to  the  magnitude 
of  the  effort.  Where  politics  is  a  game,  those  who 
make  it  their  life  work  to  play  the  game,  even  if 
they  be  few  in  number,  have  the  overwhelming  ad- 
vantage which  the  professional  always  has  in  deal- 
ing with  the  amateur.  A  great  number  of  men 
giving  a  portion  of  their  time  to  any  game  can 
scarcely  deal  on  equal  terms  with  a  few  men  who 
give  their  whole  time  to  the  acquisition  of  special 
skill.  When  the  pessimist  was  told,  by  way  of  en- 
couragement, that  God  was  stronger  than  the  devil, 
he  replied  sadly  that  the  devil  made  up  for  his 
inferior  strength  by  his  superior  activity.  This 
sort  of  obstacle  stands  in  the  way  of  the  efforts  of 


166        FREEDOM  AND  RESPONSIBILITY 

our  Good  Government  Clubs  and  Citizens'  Leagues, 
when  they  attempt  to  meet  the  professional  poli- 
tician on  his  own  ground.  To  be  permanently  suc- 
cessful, the  general  body  of  citizens  must  fight  on 
the  ground  where  they  are  strongest;  using  public 
opinion  as  their  weapon,  and  so  shaping  that  public 
opinion  that  men  will  honor  the  politician  not  for 
the  offices  which  he  gets  but  for  the  responsibilities 
which  he  assumes.  In  politics,  as  well  as  in  in- 
dustry, we  must  substitute  the  conception  of  a  trust 
for  that  of  a  game. 

There  are  signs  that  this  change  of  public  senti- 
ment is  taking  place.  The  acquisition  of  dependen- 
cies has  emphasized,  as  nothing  else  could  do,  the 
importance  of  the  theory  that  public  office  is  a 
public  trust.  When  we  were  occupied  with  the  gov- 
ernment of  our  own  states  and  cities,  appointment 
of  bad  men  to  office,  though  it  might  cause  loss  and 
waste,  was  not  likely  to  produce  wholesale  spoliation 
and  oppression.  But  when  we  came  to  deal  with  the 
inhabitants  of  the  West  Indies  or  the  Philippine 
Islands,  who  had  neither  the  constitutional  guaran- 
tees nor  the  habits  of  political  independence  which 
would  have  protected  them,  it  became  obviously 
and  imperatively  necessary  to  have  the  right  men 
in  command.  The  government  of  the  Philippine 
Islands  could  not  be  treated  as  a  game.     It  was 


THE  OUTLOOK  FOR  THE  FUTURE      167 

bound  to  be  either  a  trust  or  a  scandal.  When  our 
dealings  with  dependent  races  had  been  on  a  small 
scale  and  in  our  own  back  yard,  as  in  the  case  of  the 
Indians,  we  had  not  infrequently  allowed  them  to 
become  scandals.  But  with  our  assumption  of  new 
and  large  responsibilities  in  the  sight  of  the  whole 
world  it  became  a  matter  both  of  pride  and  of 
necessity  to  treat  government  of  dependencies  as  a 
public  trust ;  and  to  appoint  to  high  offices,  not  the 
men  who  wished  to  use  those  offices  for  selfish  ends, 
but  men  who  could  do  the  work  best  and  who  took 
the  positions  because  their  services  were  impera- 
tively needed. 

There  can  be  no  doubt  that  this  new  understand- 
ing of  the  duties  of  government  in  our  dependencies 
will  have  its  effect  upon  our  understanding  of  the 
duties  of  government  at  home.  The  experience  of 
other  nations  gives  us  ground  for  this  belief.  When 
England,  at  the  close  of  the  last  century,  came  to 
regard  India  not  as  a  mine  to  be  exploited  but  as  an 
empire  to  be  administered,  the  effect  did  not  stop 
in  India.  It  made  its  influence  felt  in  the  concep- 
tion of  the  rights  and  duties  of  public  officials  in 
England  itself.  We  may  expect  to  see  the  same 
result  in  America — not  to  be  reached  in  a  day  or 
in  a  year,  but  by  the  slow  process  of  educating 
the  public  opinion  of  the  next  generation.    To  the 


168        FREEDOM  AND  RESPONSIBILITY 

boys  who  are  now  growing  up  to  manhood,  the 
public  approval  of  the  work  of  men  like  Taft  in 
the  Philippine  Islands  will  be  a  lesson  in  political 
ethics,  worth  more  than  a  hundred  sermons  or 
treatises.  It  will  teach  them  to  apply  similar  stand- 
ards in  judging  what  really  constitutes  political 
success  at  home.  They  will  learn  that  the  highest 
type  of  honor  is  not  to  be  obtained  by  playing  a 
game  under  certain  well  defined  rules,  and  abstain- 
ing from  acts  which  those  rules  forbid,  but  by  the 
subordination  of  personal  convenience  and  of  some 
of  the  more  obvious  forms  of  personal  interest  to 
the  needs  of  public  service. 

The  negative  virtue  of  conforming  to  the  decisions 
of  the  courts  and  abiding  by  the  authority  of  the 
law  is  sufficient  for  the  subjects  of  a  monarchy.  It 
may  possibly  be  sufficient  for  the  members  of  a 
democracy  where  population  is  so  scattered  that 
each  man  is  necessarily  occupied  in  doing  nearly 
everything  for  his  family  and  relatively  little  for 
his  neighbors.  But  when  population  becomes  denser 
and  society  more  complex,  the  citizen  of  a  demo- 
cratic community  cannot  be  content  with  the  mere 
abstinence  from  unlawful  action.  If  we  would 
maintain  the  theory,  which  is  of  the  very  essence 
of  democracy,  that  every  citizen  is  a  gentleman, 
our  citizens  must  be  prepared  to  accept  the  respon- 


THE  OUTLOOK  FOR  THE  FUTURE      169 

sibilities  which  go  with  that  claim, — to  assume 
positive  duties  which  they  enforce  upon  themselves 
without  waiting  for  the  control  of  some  outside 
authority.  They  must  be  prepared  to  subordinate 
their  own  personal  needs  to  the  needs  of  the  com- 
munity. When  public  opinion  has  frankly  accepted 
this  standard  of  civic  duty,  then — and  not  till  then 
— we  can  have  real  reform  in  politics. 

The  possibilities  and  the  difficulties  of  political 
reform  are  singularly  like  those  of  industrial  re- 
form. If  we  condemn  a  boss  when  he  governs  in 
his  interest  and  in  that  of  his  friends,  because  we 
would  rather  govern  in  our  interest  and  in  that  of 
our  friends,  people  will  laugh  at  us.  But  when  we 
are  prepared,  so  far  as  opportunity  is  given  us,  to 
use  political  power  in  the  public  interest,  at  the 
sacrifice  of  our  own  convenience  and  our  own  per- 
sonal advantage,  then  our  condemnation  begins  to 
count  for  something.  By  the  time  a  large  number 
of  sensible  men  have  learned  to  look  at  matters  in 
this  way,  this  condemnation  will  count  for  every- 
thing. It  is  the  voice  of  such  disinterested  public 
opinion,  and  that  alone,  which  makes  the  perma- 
nent success  of  democracy  possible. 

In  emergencies  America  has  always  enjoyed  the 
benefit  of  disinterested  service  from  its  citizens.  In 
the  gravest  crises  of  our  national  life  we  have  found 


170        FREEDOM  AND  RESPONSIBILITY 

men  like  Washington  and  Lincoln  to  lead  us.  Both 
these  men  had  detractors,  who  desired  to  see  them 
removed  from  power,  and  organized  bitter  opposi- 
tion against  them.  But  it  was  plain  to  the  great 
body  of  freemen  that  Washington  and  Lincoln 
were  subordinating  individual  interest  to  public 
duty,  and  that  it  was  a  good  thing  that  men  who 
had  this  conception  of  public  duty  should  be  placed 
in  office  and  kept  there.  It  is  for  us  to  see  that  this 
conception  of  public  oiBce  be  continuously  applied 
in  peace  as  well  as  in  war.  For  as  the  importance 
of  the  functions  of  government  increases,  the  char- 
acter of  the  men  who  administer  it  from  day  to 
day  becomes  a  matter  of  correspondingly  increased 
importance.  We  shall  be  told  that  we  are  pursuing 
impossible  ideals;  that  men's  political  and  indus- 
trial actions  will  necessarily  be  guided  by  self-in- 
terest ;  that  the  conception  of  politics  and  industry 
as  games,  though  it  may  not  be  the  profoundest  or 
most  desirable  one,  is  the  only  one  which  we  can 
expect  to  see  realized ;  and  that  modification  in  the 
rules  of  the  game,  by  which  selfishness  shall  be 
turned  into  less  harmful  channels,  is  the  best  thing 
that  we  can  expect.  We  need  not  be  discouraged 
by  these  criticisms.  Still  less  need  our  actions  be 
affected  thereby.  If  these  statements  are  true  it 
means  that  the  days  of  our  democracy  are  num- 


THE  OUTLOOK  FOR  THE  FUTURE       171 

bered,  and  that  we  have  before  us  a  fate  like  that 
of  the  Italian  republics  at  the  close  of  the  Middle 
Ages,  where  wealthy  and  unscrupulous  citizens 
gained  absolute  control  over  the  affairs  of  the  state 
— preserving,  indeed,  in  many  instances  the  forms 
of  a  commonwealth,  but  without  either  the  actual 
liberty  or  the  actual  morality  which  is  essential 
thereto.  But  we  do  not  need  to  look  forward  to  this 
fate  as  the  probable  one.  There  is  every  reason  to 
hope  that  our  best  men  can  so  influence  the  com- 
munity that  we  shall  demand  in  public  affairs  the 
same  standards  of  morality  which  we  voluntarily 
impose  upon  ourselves  in  private  ones.  We  have 
passed  the  time  when  a  man's  family  and  personal 
relations  were  mere  matters  of  sport.  There  are, 
indeed,  men  who  still  hold  that  view ;  and  these  are 
the  very  ones  who  are  most  cynical  about  the  pros- 
pects of  reform  in  our  industrial  or  political  life. 
But  these  men  dare  not  publicly  avow  those  stand- 
ards of  personal  morality  which  would  have  passed 
muster  a  few  centuries  ago.  We  have  proved  the 
possibility  in  private  life  of  making  the  conception 
of  a  gentleman's  duty  at  once  democratic  and 
Christian — of  recognizing  his  obligations  to  render 
sympathy  and  justice  not  merely  to  a  few  men  and 
women  of  his  own  class  but  to  all  human  beings  with 
whom  he  comes  in  contact.    It  remains  for  us  only 


172         FREEDOM  AND  RESPONSIBILITY 

to  extend  this  standard  of  self-imposed  obligation 
so  that  it  shall  affect  our  dealings  with  masses  as 
well  as  with  separate  persons ;  to  be  as  unwilling  to 
tolerate  the  oppression  of  a  helpless  body  of  people 
over  whose  destinies  we  have  control  as  we  now  are 
to  practise  cruelty  or  extortion  against  those  people 
as  individuals ;  and  to  demand  that  our  rulers  shall 
recognize  these  obligations  to  the  public  as  urgently 
as  we  now  demand  that  they  shall  recognize  the 
obligations  of  common  every-day  morality.  With 
this  higher  standard  of  industrial  and  political 
ethics,  a  beginning  has  already  been  made.  In  both 
of  these  fields  we  appreciate  more  fully  than  our 
fathers  did  the  importance  of  political  and  indus- 
trial trusts,  and  the  wide  range  of  duties  which  the 
acceptance  of  such  trusts  carries  with  it.  If  we  will 
use  our  utmost  endeavors  to  see  straight,  to  think 
clearly,  and  to  govern  ourselves  by  the  same  stand- 
ards which  we  seek  to  impose  upon  others,  we  can 
look  forward  with  confidence  to  the  perpetuation 
of  personal  liberty,  and  to  the  permanence  of  demo- 
cratic institutions. 


INDEX 


Anarchists,    toleration    of, 

97,  98 
Arbitration,  137-139 
Aristotle's  political  theories, 

2,  146 
Atonement,     conception     of, 

59,  60 

Bagehot,  Physics  and  Poli- 
tics, 53,  54,  99 

Cablyle  on  Liberty,  98 

Checks  and  balances,  effect 
of,  17,  18 

Civil  remedies,  77,  78 

Coal   combinations,   134-140 

Combinations,  management 
of,  133-136 

Commercial  standards  of 
morals,  145,  146 

Competition,  119-123,  158; 
difficulties  of,  128-136;  in 
politics,  164 

Congress,  change  in  func- 
tions of,  14-16 

Consciousness,  49,  57,  58 

Conspiracy,  139-142 


Contract,  system  of,  75,  78- 

81,  136-139 
Constitution   of   the    United 

States,  10-18 
Constitutional        limitation, 

character  of,  30 
Corporation  law  and  ethics, 

81,  82,  157-160 

Debate  in  legislative  bodies, 

13-15 
Directors,  duties  of,  159,  160 

Economic  freedom,  116-120 
Egoism,  rational,  107-110 
Emancipation,  46 ;  mediseval, 

112-115 
English    constitutional    the- 
ory, 29 ;  political  morality, 
167,  168 
Ethics,  origin  of,  50-54 
Evolution,    in    man    and    in 

the  lower  animals,  50-52 
Expiation,  59 

Freedom    of    teaching,    95- 

98;  of  the  will,  48-72 
French  Revolution,  5-7 


173 


174 


INDEX 


Government  management  of 
industry,  142-144 

Illegitimate  government,  2 
Individualism,     102 ;     limits 

of,  12G-144 
Industrial  morality,  modern, 

155-157 
Insanity,  conception  of,  87- 

89 
Instinct,  49-51 
Interest,  ethics  of,  116 


Pakliamentaby  government, 

9 
Party     machinery     in     the 

United   States,  18-23 
Passive  resistance,  37 
Personal  responsibility,  62 
Political  ethics,  modern,  161- 

164 
Populism,  2-7 
Precedent,   authority  of,  33, 

34 
Private  judgment,  46 
Prophets,  work  of,  87-89 


Jevons  on  combination,  140 
Judiciary,  American,  23,  24 

Eaissez  faire,  105 
Lassalle,  128 

Law,   evolution    of,   63,   64 ; 
separated  from  morals,  01 
Legitimate  government,  2 

Marshall,  H.  R.,  on  re- 
ligious observance,  56 

Mediaeval  economic  changes-, 
112-115 

Merit,  69 

Mill  on  Liberty,  83,  84 

Morality,  ancient,  64,  65 : 
modern,   153-155 

Morley,  doctrine  of  liberty, 
98,  99,  104 

Negro  suffrage.  39-43 
Nullification,  37 


Religion,  origin  of,  53-58 
Religious      observance,      55, 

56,  85,  86 
Remedies,  civil  and  criminal, 

77,  78 
Responsibility,   personal,  62 
Reversion,  52 
Roman  law  of  contracts,  78, 

79 
Rousseau  on  sovereignty,  5, 

35 

Sacrifice,  50,  GO 
Self-regarding  acts,  84,  85 
Self-restraint    the    basis    of 

liberty,  25,  27,  45 
Socialism,   142-146 
Sovereignty,    theory    of,    34, 

35 
Status,  system  of,  74-77 

Teaching,   freedom  of,  95- 

98 
Toleration,  58,  87,  102,  103 


INDEX  175 

Trusts,     ethical    aspect    of,       Value,    ethical     theory    of, 

157-160;     political,     166-  117-120 

168 

Wabbanty,  81 
Usury,  116  Will,  freedom  of,  48-72 


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